Analysis and determination
4.Before delving into the merits of the appeal, I note that the issue of the competency or otherwise of the appeal needs to be addressed first. There is an amended Record of Appeal filed herein on 19/7/2022 pursuant to leave granted by this Court on 9/6/2022.
5.Pages 4 - 5 of the amended Record of Appeal contain the Memorandum of Appeal dated 23/6/2021 initially filed on 25/6/2021 by the Appellant through the firm of D. Njogu & Co. Advocates. The Memorandum of Appeal alludes to an appeal against a Ruling of the trial Court delivered on 29/4/2020. However as already indicated the Appellant prays that the trial Court Judgment, whose date of delivery is not disclosed, against him be set aside. It is not clear if the impugned Judgment is the one delivered on 16/1/2020 and found at pages 185 – 198 of the Record of Appeal.
6.If the Court takes that the impugned Judgement is the one dated the 16/1/2020, then it is noted that the Memorandum of Appeal was filed one year and five months later contrary to the provisions of Section 79G of the Civil Procedure Act which states;
7.The provision is coached in mandatory language with latitude for a party to seek leave to file an appeal out of time upon satisfying the Court the reason(s) for not filing within 30 days. In the instant case, there is no evidence that the Appellant sought and obtained leave to file its appeal out of time in line with the above proviso.
8.I am guided by the Court of Appeal decision in Mistry Premji Ganji (Investments) Limited Vs Kenya National Highways Authority  eKLR where the Court allowed an Application to strike out the appeal for being filed out of time and without leave of Court held as follows;
9.That said there is a more fundamental issue that I must discuss here. I have read the amended Record of Appeal dated the 15/7/2022 and filed on 19/72022 which at the preamble states as follows-
10.The supplementary Record of Appeal dated the 12/9/2022 and filed on the 15/9/2022 states that it is against the Ruling of the above decision.
11.The Memorandum of Appeal as captured in the amended Record of Appeal states in its opening statement as follows;
12.The Appellant sought prayers in interalia that the Judgement of the lower Court against the Appellant be set aside. The date of the Judgement is not disclosed.
13.However, despite diligent perusal of the file I am unable to find a Ruling delivered on the 29/4/2020. What is on record are the Rulings of the Court delivered on the 30/7/2019 and 15/10/2019. As stated earlier there is a Judgment of the trial Court delivered on the 16/1/2020 in the amended Record of Appeal.
14.I find that there is total disharmony between the Record of Appeal, the Memorandum of Appeal and what the Appellant is appealing against. Is it an appeal against the Rulings or the Judgement of the Court? A scenario like this makes it extremely difficult for the Court to decipher the intentions of the Appellant as to what he is aggrieved with.
15.The Court cannot redraft the appeal for the Appellant. I find that the appeal before me is incompetent and in my view the interest of justice shall be served if the same is struck out to enable the Appellant, if so desired, to place a proper appeal before the Court.
16.I make no orders as to costs.
17.It is so ordered.