1.The Memorandum of Appeal was filed on November 8, 2021. The Ruling being challenged was issued on April 8, 2022. This is a time lapse of 7 months. Earlier the appeal was filed in Mombasa HCCA No 58 of 2021 but apparently withdrawn. The said Memorandum of Appeal was dated April 23, 2021 and filed the same day.
2.The applicant has again filed an appeal vide a Notice of Motion. There is no Memorandum of Appeal what is present. It is only a receipt for payment of the same. It is important to note that in the response to the Preliminary Objection, dated January 30, 2023, a Memorandum of Appeal dated April 23, 2021 and filed the same day was attached as an annexure. It is the same as that in the withdrawn appeal No 58 0f 2021.
3.I have taken steps to ask for the High Court Appeals Register for year 2021. Appeal No 58 of 2021 was registered on April 27, 2021. The Appeal under No 210 of 2021 (this appeal) was registered on November 8, 2021. It therefore beats logic how the Memorandum of Appeal which was filed on November 8, 2021bears the receiving stamp of April 23, 2021. I shall go by the court record, and that is this appeal was filed on November 8, 2021.
4.Therefore, an appeal cannot exist without a memorandum of Appeal. Secondly, the memorandum of Appeal should be filed within 30 days of the decision, unless a certificate related to the delay in getting the decree is in issue. Section 79 G of the Civil Procedure Act provides the 7 rules for filing appeal as follows;
5.Though this this matter was for hearing of a Preliminary Objection, I note that there is nothing to hear. There is no Appeal filed. Order 42 Rule 1 provides as follows: -
6.What we have is an application being passed as an appeal, and which was filed 6 months out of time without leave. I do not find any need to deal with the issues raised for the Preliminary objection. I therefore strike out the entire application with costs to the Respondent