I. Introduction
1. Before this Honourable Court for determination is the Notice of Motion application dated 15 th November, 2025 brought by Abeid Majibu Mwachileo, Juma Hamisi Mwakoba, Salim Mwabundu, Zuberi Abdalla, Rashid Said Mdogo and Omari Ali Mlaula the six (6) Appellants/Applicants herein, against Salim Said Jabu, Hamisi Hassan Mwakucherem and Rama Said Mwakubo the three (3) Respondents herein.
2. The application was brought pursuant to the provisions of Order 42 Rules 6 and 7 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Cap. 21 Laws of Kenya, and all other enabling provisions of the law.
3. Upon service, the Respondents opposed the application through a Replying Affidavit sworn by the 1 st Respondent, Salim Said Jabu, on 6 th February, 2026, together with written submissions dated 9 th March, 2026. Their position was that the application was devoid of merit, that the delay had not been satisfactorily explained, that the Applicants deliberately failed to attend Court during several scheduled Judgment dates, and that the intended appeal lacks any arguable grounds capable of warranting the exercise of this Court's discretion.
II. The case by the 1 st , 2 nd , 3 rd , 4 th , 5 th & 6 th Appellants/Applicants
4. The 1 st , 2 nd , 3 rd , 4 th , 5 th & 6 th Appellants/Applicants Notice of sought principally the following substantive orders:
a) Spent.
b) That pending the hearing and determination of this Application inter-partes, the Honourable Court be pleased to issue an Order of injunction against the Respondents either by themselves, their assigns, servants, agents and/or any other persons acting under their direction from either entering, selling, offering for sale, transferring, leasing and/or in any other way interfering with the property known as KWALE/NG’OMBENI/236 pending Appeal of the Judgment delivered on 5th September, 2025 in the Chief Magistrate’s Court Land Case No. E018 of 2020 (Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others) and all other consequential orders arising therefrom;
c) That pending the hearing and determination of the intended Appeal herein, the Honourable Court be pleased to issue an Order of injunction against the Respondents either by themselves, their assigns, servants, agents and/or any other persons acting under their direction from either entering, selling, offering for sale, transferring, leasing and/or in any other way interfering with the property known as KWALE/NG’OMBENI/236 pending Appeal of the Judgment delivered on 5th September, 2025 in the Chief Magistrate’s Court Land Case No. E018 of 2020 (Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others) and all other consequential orders arising therefrom on terms and conditions that are just in the circumstances;
d) That this Honourable Court be pleased to grant the Applicants leave to appeal out of time and to treat the draft Memorandum of Appeal annexed herewith as duly filed; and
e) That the costs of this Application be provided for.
5. The application is premised on the grounds, testimonial facts and averments made out under the twenty three (23) Paragraphed Supporting Affidavit of ABEID MAJIBU MWACHILEO, the 1 st Appellant/Applicant herein, sworn and dated on 28 th November, 2025 together with two annexures marked as annexure “A” being copies of the Draft Memorandum of Appeal and the impugned Judgment of the trial Court delivered on 5 th September, 2025. He averred as follows:-
a) For the sake of context, the genesis of this application is traceable to the Judgment of Hon. L.T. Lewa, the Senior Principal Magistrate, delivered on 5 th September, 2025 in the Chief Magistrate’s Court at Kwale in Land Case No. E018 of 2020 – Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others .
b) By the said Judgment, the trial Court dismissed with costs the Appellants/Applicants’ suit which sought, inter alia, a declaration that all that parcel of land known as Title Number KWALE/NG’OMBENI/236 (hereinafter referred to as “the suit property”) had always been the property of the late Mwinyi Mwachongwa and that his daughter, the late Mwanamwinyi Kuyumbwa Mwinyi, held the same in trust for all the beneficiaries of his lineage; a permanent injunction restraining the Respondents from alienating the suit property;
c) An order that the Registrar be rectified to include the 1 st and 2 nd Appellants/Applicants as co-trustees.
d) The trial Court, upon evaluating the evidence tendered before it, held that the suit property was demarcated, surveyed and recorded in the sole name of Mwanamwinyi Kuyumbwa Mwinyi on 11 th July, 1975 without any qualification that she held it as a trustee.
e) It held that the Appellants/Applicants failed to discharge the burden of proof cast upon them under Sections 107 and 109 of the Evidence Act, Cap. 80.
f) That the title held by the Respondents, having devolved upon them through Succession Cause No. 133 of 2019 before the Kadhi’s Court, was indefeasible and only impeachable on the grounds set out under Sections 26 (1) and 80 (1) of the Land Registration Act, No. 3 of 2012; and that the Kadhi’s Court order remained uncontested. The suit was accordingly dismissed with costs.
g) Being aggrieved and dissatisfied with the said Judgment, they intend to appeal against the whole of it, which appeal, in their estimation, has high chances of success.
h) Due to the delay in obtaining the Judgment of the lower Court, their intention of appealing within the requisite statutory timeframe of thirty (30) days was impeded through no fault of their own, hence their prayer for leave to appeal out of time and for the annexed draft Memorandum of Appeal to be deemed as duly filed.
i) Being apprehensive that, in view of the delayed notification of the Judgment, the Respondents may proceed to sell the suit property to their disadvantage, and that indeed in the intervening period the Respondents have been entertaining likely purchasers to come and view the suit land.
j) Unless the orders sought was granted, they stood to suffer irreparable loss and great prejudice, and the intended appeal will be rendered nugatory.
k) Finally, the Appellants/Applicants averred that the application was brought timeously and without unreasonable delay, having been filed only about a week after they received the subject Judgment from the CTS Portal, and that they have annexed a copy of the Draft Memorandum of Appeal together with the impugned Judgment in demonstration of their bona fides.
III. Replying Affidavit by the 1 st , 2 nd & 3 rd Respondents
6. Upon being served, the Respondents opposed the application through the seventeen (17) Paragraphed Replying Affidavit of SALIM SAID JABU, the 1 st Respondent herein, sworn and dated on 6th February, 2026 together with the annexures marked as “SSJ - 1”, “SSJ - 2”, “SSJ - 3” and “KBM - 1” annexed thereto. He averred as follows that:-
a) In stiff opposition to the application, the 1 st Respondent deponed that the Appellants/Applicants instituted the suit at the Magistrate’s Court in the year 2020 and the Respondents successfully defended and prosecuted it for the last five (5) years.
b) The Respondents had been deprived of the use of the suit property by the Appellants/Applicants who had continued to trespass upon and cultivate the same; and that by allowing the intended appeal, the Respondents would be deprived of the fruits of the Judgment delivered on 5 th September, 2025.
c) On the advice of his Advocates on record, that an application of this nature must be made without unreasonable delay; that the Appellants/Applicants had not demonstrated good and sufficient cause for not filing the appeal in time.
d) They had instead come to equity with unclean hands and shifted blame onto the Court while they themselves are guilty of not attending Court when the matter came up for Judgment.
e) It was not the first time the Appellants/Applicants neglected their duty to attend Court, noting that they were the Plaintiffs before the trial Court. To wit, on 30 th May, 2025 when the matter was scheduled, and similarly on 30 th July, 2025, 27 th August, 2025 and 5 th September, 2025, the Appellants/Applicants were not in Court when the matter was scheduled for the delivery of the Judgment.
f) Contrary to the Appellants/Applicants’ averments, the Judgment was delivered virtually on 5 th September, 2025 and that he was present in his Advocates’ chambers when the same was delivered in the absence of the Plaintiffs. He annexed and marked as “SSJ - 1” a copy of his Advocates on record’s Court Attendance Notes and a screenshot of his Advocates on record’s WhatsApp group update of 5 th September, 2025.
g) The Appellants/Applicants were indolent in failing to attend Court on 5 th September, 2025 and that their averment that both parties were absent and that the Judgment was “delivered” on 12 th November, 2025 was misleading and an attempt to cover up their indolence.
h) The Judgment was only posted on 12 th November, 2025 on the CTS Portal after his Advocate on record inquired on the Kwale Bar Bench WhatsApp Group about the Judgment being posted on CTS, and annexed a screenshot of the said inquiry marked as “SSJ - 2”.
i) On the arguability of the intended appeal, the 1 st Respondent responded seriatim to each of the ten (10) grounds set out in the Draft Memorandum of Appeal, contending in the main that the learned trial Magistrate correctly applied her mind to the facts, the law and the circumstances of the case.
j) Both the Land Registrar and the Adjudication Officer confirmed to the trial Court that the late Mwanamwinyi Kuyumbwa Mwinyi was never recorded as holding the suit property in trust of anyone or as a trustee; that no dispute was recorded or filed against the recorded owner at the time of demarcation and registration; and that the Appellants/Applicants were aware of the succession proceedings at the Kadhi’s Court but neither challenged the same nor appealed the orders stemming therefrom. He annexed a copy of the Judgment dated 5 th September, 2025 marked as “KBM - 1”.
k) The intended appeal was a mere academic exercise with no chance of success; that the Appellants/Applicants had not demonstrated what substantial loss they stand to suffer; and that the Court must balance the interests of the Applicants against those of a successful litigant who ought not to be deprived of the fruits of his Judgment.
l) He further deponed that should the Court allow the application, the Respondents will suffer prejudice; that the Appellants/Applicants are in occupation of the suit property and have been felling trees even after the Court pronounced itself, placing the property at risk of going to waste; and that he has reported the matter to the Ng’ombeni Police Station, annexing a copy of the Occurrence Book (OB) extract marked “SSJ - 3”.
m) Finally, the 1 st Respondent deponed, on the advice of his Advocates, that the Appellants/Applicants are required to meet the threshold demonstrated in the celebrated case of “ Giella – Versus – Cassman Brown & Company Limited (1973) EA 358” , which they have failed to do, having demonstrated neither the existence of a prima facie case nor injury incapable of adequate compensation in damages. He termed the application flimsy, frivolous, scandalous and an abuse of the Court process, and prayed that it be dismissed with costs.
IV. Submissions
7. On 30 th April, 2026 while all the parties were present before the Court, they were directed to canvass the application by way of written submissions.
8. Subsequently, all parties complied. Pursuant to that the Honourabe Court reserved 16 th July, 2026 as the day to deliver the Ruling accordingly.
A. The Written Submissions by the Appellants/Applicants
9. The Law Firm of Messrs. Akanga Alera & Associates Advocates filed written submissions dated 9 th March, 2026 on behalf of the Appellants/Applicants. Mr. Akanga Advocate rehashed the grounds on the face of the application and submitted that from the Replying Affidavit filed in opposition to the motion, it is clear that the Respondents’ Counsel was present during the delivery of the Judgment but thereafter chose to keep silent and let the thirty (30) days limited for preferring a Memorandum of Appeal lapse; and that though under no obligation, that active choice to remain silent moved the Appellants/Applicants to the position in which they now find themselves.
10. Counsel submitted that the grievance raised in the proposed appeal is that the Appellants/Applicants’ great grandmother, Mwanamwinyi, inherited the suit land from her father Mwinyi Mwachongwa; that at the time of land adjudication she was the oldest surviving child of Mwinyi Mwachongwa; that all the descendants of Mwinyi Mwachongwa among the five siblings of Mwanamwinyi have always lived on the suit land to date; that her four (4) siblings were buried on the land and the great grandchildren live there to date; and that Mwanamwinyi was therefore registered in trust of herself and all her siblings and their descendants, who have nowhere else to go or live.
11. It was submitted that it is trite law that an order for injunction pending appeal is guided by the same principles as those guiding a stay pending appeal, and that the Court must be satisfied of three factors, namely: substantial loss; that the application must have been made within reasonable time; and security for the due performance of the decree or orders. On substantial loss, Counsel submitted that the same would be the permanent loss of the Appellants/Applicants’ home as they have known it since they were born. On timeliness, the Learned Counsel submitted that the Appellants/Applicants brought the application as soon as they became aware of the existence of the Judgment, delay being construed from the circumstances of each case on its own merit. The Learned Counsel further submitted that the grounds laid out in the Memorandum of Appeal disclose an arguable appeal.
12. To buttress those propositions, the Learned Counsel placed reliance on the authorities of:- Kenya Power & Lighting Company Limited – Versus – Kigaita Ngare Unduthu & 36 Others [2020] eKLR and Kenya Shell Limited – Versus – Benjamin Karuga Kibiru & Another [1986] eKLR , and urged the Court to grant the orders sought.
B. The Written Submissions by the Respondents
13. The Law Firm of Messrs. Chimera, Kamotho & Company Advocates LLP filed written submissions dated 2 nd April, 2026 on behalf of the Respondents. M/s. Kimani Advocate isolated two (2) issues for determination, namely: whether the application was merited; and who should bears the costs.
14. On the first issue. The Learned Counsel submitted that an application of this nature was guided specifically by Order 42 Rule 6 (6) of the Civil Procedure Rules, 2010 and the principles in the case of:- “ Giella – Versus – Cassman Brown (Supra)” . The Learned Counsel submitted that the said sub-rule donates to this Court discretionary power to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from the sub - ordinate Court has been complied with; and that by dint of the provision of Section 79G of the Civil Procedure Act, Cap. 21, every appeal from a subordinate Court to the High Court must be filed within thirty (30) days from the date of the decree or order appealed against.
15. The Learned Counsel contended that the Appellants/Applicants had not complied with the mandatory procedure for filing of an appeal. She averred that the Judgment of the sub - ordinate Court was delivered on 5 th September, 2025 and the thirty (30) days lapsed on 5 th October, 2025; that the Appellants/Applicants’ repeated neglect and casual approach caused the delay; and that their indolence in failing to attend Court was not an excusable mistake but rather a tactic meant to deliberately delay the cause of justice. To buttress on these assertion, reliance was placed on the case of “ Njuca Consolidated Company Ltd – Versus – Commercial International Bank & 2 Others [2025] KEHC 2990 (KLR)” where the Court, citing “ Bains Construction Co. Ltd – Versus – John Mzare Ogowe (2011) eKLR” , observed that mere inaction by an advocate was not an excusable mistake which the Court may consider with sympathy.
16. The Learned Counsel further submitted that this Court was not seized of the matter and lacked the requisite power to determine whether or not to grant the injunction sought in the exercise of its appellate jurisdiction, because there was no Memorandum of Appeal properly on record and therefore no appeal upon which the application for injunction would be based. In support thereof, the Learned Counsel cited the cases of:- “ Julius Musili Kyunga – Versus – Kenya Commercial Bank Limited & Another [2012] KEHC 342 (KLR)” , “ Raphael Mulinge Muthusi & 2 Others – Versus – Mary Ndila Nyolo [2022] KEELC 1886 (KLR)” and “ Yinda (Suing as administrator of the Late Linus Yinda Opondo) – Versus – Okumu & 3 Others [2024] KEELC 663 (KLR)” .
17. On the applicable principles, the Learned Counsel relied on the case of “ Otieno & 9 Others – Versus – Wagude & Another [2023] KEELC 16339 (KLR)” , which adopted the principles settled in “ Patricia Njeri & 3 Others – Versus – National Museums of Kenya [2014] eKLR” , to the effect that: an order of injunction pending appeal is a discretionary matter which would be exercised against an applicant whose appeal is frivolous; the discretion should be refused where it would inflict greater hardship than it would avoid; the applicant must show that to refuse the injunction would render the appeal nugatory; and the Court should also be guided by the principles in “ Giella – Versus – Cassman Brown (Supra) . The Counsel also cited “ Loyd Mugambi Maina & 19 Others – Versus – Kirumi Kiamujari Water Project [2022] KEELC 1216 (KLR)” and “ Maleto – Versus – Thini [2025] KEELC 5065 (KLR)” on the judicious, as opposed to arbitrary or capricious, exercise of discretion.
18. The Learned Counsel opined that the purpose of an injunction pending appeal is to preserve the subject matter; that the Respondents had not extracted any decree to enforce and no evidence has been tendered to substantiate that the Respondents were offering the suit property for sale; that if anything, it was the Appellants/Applicants who had been felling trees even after the sub - ordinate Court held in favour of the Respondents; and that it was the Respondents who risked the property going to waste, having reported the matter to the Ng’ombeni Police Station as evidenced by annexure as “SSJ - 3”. Reliance was placed on “ Chucha – Versus – Wamaitha & 2 Others [2023] KECA 290 (KLR)” on the meaning of the term “nugatory” .
19. On principles enshrined in “ the Giella case” , the Learned Counsel submitted that the Appellants/Applicants had not established “ a prima facie case’ , the trial Court having rightfully held that it was incumbent upon them to adduce evidence demonstrating that the suit property was registered in the name of Mwanamwinyi Kuyumbwa Mwinyi in trust of Mwinyi Mwachongwa’s lineage, which they failed to prove; that the suit property could be quantified and the Appellants/Applicants could be awarded damages should they succeed on appeal; and that the balance of convenience tilted in favour of the Respondents. Reliance was placed on the Court of Appeal decision in the case of “ Charter House Investment Limited – Versus – Simon K. Sang & 3 Others [2010] KECA 56 (KLR)” .
20. On costs. The Counsel invoked the provision of Section 27 of the Civil Procedure Act, Cap. 21 and the cases of:- “ Republic – Versus – Rosemary Wairimu Munene, Ex - Parte Applicant Ihururu Dairy Farmers Co - operative Society Limited, Judicial Review No. 6 of 2014 and Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Another (2016) eKLR” on the settled proposition that costs follow the event, and prayed that costs be awarded to the Respondents.
V. Analysis and Determination
21. I have keenly considered the Notice of Motion application dated 15 th November, 2025, the Supporting Affidavit and the annexures thereto, the Replying Affidavit and the annexures thereto, the rival written submissions by the Learned Counsel for the parties, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the applicable statutes.
22. In order to arrive at an informed, reasonable, just and fair decision, this Honorable Court has framed the following three (3) salient issues for its determination:
a) Whether the Appellants/Applicants have made out a case for the grant of leave to appeal out of time against the Judgment delivered on 5 th September, 2025 in Kwale CMELC Case No. E018 of 2020, and for the annexed draft Memorandum of Appeal to be deemed as duly filed;
b) Whether the Appellants/Applicants are entitled to a temporary injunction against the Respondents over the suit property, being Title Number KWALE/NG’OMBENI/236, pending the hearing and determination of the intended appeal; and
c) Who should bear the costs of the application.
ISSUE No. a) Whether the Appellants/Applicants have made out a case for the grant of leave to appeal out of time against the Judgment delivered on 5 th September, 2025 in Kwale CMELC Case No. E018 of 2020, and for the annexed draft Memorandum of Appeal to be deemed as duly filed;
23. Before proceeding on with the analysis under this sub – heading, the Honourable Court wishes to extrapolate of some brief background of the matter. The application arose from the Judgment delivered by the Lower trial Court -n civil case numbers “ the Chief Magistrate's Court at Kwale in CM ELC Case No. E018 of 2020, Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others” , on 5 th September, 2025, whereby the Appellants/Applicants’ suit was dismissed. Dissatisfied with the said decision, the Appellants/ Applicants expressed their intention to challenge the entire Judgment before this Court.
24. The Appellanats/Applicants contend that although the Judgment was delivered on 5 th September, 2025, the Court communicated the existence of the Judgment through the Court Tracking System (CTS) on 12 th November, 2025, thereby occasioning delay in lodging their appeal within the statutory thirty (30) days stipulated under Section 79G of the Civil Procedure Act2, Cap. 21. Consequently, they sought for leave to file the intended appeal out of time together with interim preservatory orders over Land Parcel Number Kwale/Ng'ombeni/236 pending the hearing and determination of the intended appeal.
25. From the pleadings filed herein, it was evident that the dispute concerns ownership and occupation of Land Parcel Number Kwale/Ng'ombeni/236, with the Appellants/Applicants asserting beneficial interests founded upon alleged customary trust and inheritance, while the Respondents maintain that they were the absolute registered and legal proprietors whose title was lawfully upheld by the trial Court after a full hearing spanning approximately five years.
26. Having carefully considered the pleadings, affidavits, annextures, written submissions and authorities filed by the respective parties, this Court now proceeds to determine whether sufficient grounds had been established to warrant the grant of leave to appeal out of time and the grant of an injunction pending the intended appeal. That is adequate on facts.
27. Now turning to this Sub heading. The Honourable Court wishes to deliberate on the relief sought by the 1 st , 2 nd , 3 rd , 4 th , 5 th and 6 th Appellant/Applicants for this Court to be pleased to allow them to appeal against the Judgment of Hon. L.T. Lewa, the Senior Principal Magistrate, delivered on 5 th September, 2025 in “ the Chief Magistrate’s Court at Kwale in Land Case No. E018 of 2020 – Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others. The issue of extension of time to file appeal from the lower court to this Court are governed under the provision of Section 79G of the Civil Procedure Act, Cap. 21. It provides that: -
A “ Every appeal from a Sub - Ordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order .
B: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time”
28. Similarly, the provision of Section 16A(1) and (2)of the Environment and Land Court Act, No. 19 of 2011 provides that:-
A)“Every appeal from a sub - ordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant a copy of the decree or order.
B)Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time”.
29. However, the principles that guide the court in the exercise of its discretion to extend time for filing an appeal out of time are governed under the provisions of Section 79G and 95 of the Civil Procedure Act, Cap. 21 and Order 50 Rules 6 and 7 of the Civil Procedure Rules, 2010
Section 79G provides:- Time for filing appeals from Sub – ordinate courts – Every appeal from the sub – odinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
Section 95 provides - Enlargement of Time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Act, the Court may, in its discretion, from time to time, enlarge such period, even though originally fixed or granted may have expired.
Order 50 ( 6 ):- Power to enlarge Time:- Where a limited time has been fixed for the doing of any act prescribed or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.
30. Furthermore, these principles exhaustively and comprehensively were laid down by the Supreme Court in the case of “ Nicholas Kiptoo Arap Salat – Versus - IEBC & 7 Others (2014) eKLR , as follows:-
“……it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1) extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2) a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3) whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4) where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5) whether there will be any prejudice suffered by the Respondents, if extension is granted;
6) whether the application has been brought without undue delay ; and
7) whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
31. Similarly, the Court of Appeal in the case of “ Thuita Mwangi – Versus Kenya Airways Limited (2003) eKLR” quoted with approval the case of “ Leo Sila Mutiso – Versus - Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997 ) (unreported) where the court set out guidelines on applications for extension of time to file appeals: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay : secondly, the reason for the delay : thirdly (possibly), the chances of the appeal succeeding if the application is granted : and, fourthly, the degree of prejudice to the Respondent if the application is granted ”.
32. Therefore, it is now settled that a court of law has unfettered discretion to extend time to appeal which discretion has to be exercised judiciously as restated in the case of:- “ Omar Shurie – Versus - Marian Rashe Yafar (2020) eklr as follows:-
“It is now well settled that the decision whether or not to extend the time for appealing
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1. Before this Honourable Court for determination is the Notice of Motion application dated 15 th November, 2025 brought by Abeid Majibu Mwachileo, Juma Hamisi Mwakoba, Salim Mwabundu, Zuberi Abdalla, Rashid Said Mdogo and Omari Ali Mlaula the six (6) Appellants/Applicants herein, against Salim Said Jabu, Hamisi Hassan Mwakucherem and Rama Said Mwakubo the three (3) Respondents herein.
2. The application was brought pursuant to the provisions of Order 42 Rules 6 and 7 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A and 79G of the Civil Procedure Act, Cap. 21 Laws of Kenya, and all other enabling provisions of the law.
3. Upon service, the Respondents opposed the application through a Replying Affidavit sworn by the 1 st Respondent, Salim Said Jabu, on 6 th February, 2026, together with written submissions dated 9 th March, 2026. Their position was that the application was devoid of merit, that the delay had not been satisfactorily explained, that the Applicants deliberately failed to attend Court during several scheduled Judgment dates, and that the intended appeal lacks any arguable grounds capable of warranting the exercise of this Court's discretion.
II. The case by the 1 st , 2 nd , 3 rd , 4 th , 5 th & 6 th Appellants/Applicants
4. The 1 st , 2 nd , 3 rd , 4 th , 5 th & 6 th Appellants/Applicants Notice of sought principally the following substantive orders:
a) Spent.
b) That pending the hearing and determination of this Application inter-partes, the Honourable Court be pleased to issue an Order of injunction against the Respondents either by themselves, their assigns, servants, agents and/or any other persons acting under their direction from either entering, selling, offering for sale, transferring, leasing and/or in any other way interfering with the property known as KWALE/NG’OMBENI/236 pending Appeal of the Judgment delivered on 5th September, 2025 in the Chief Magistrate’s Court Land Case No. E018 of 2020 (Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others) and all other consequential orders arising therefrom;
c) That pending the hearing and determination of the intended Appeal herein, the Honourable Court be pleased to issue an Order of injunction against the Respondents either by themselves, their assigns, servants, agents and/or any other persons acting under their direction from either entering, selling, offering for sale, transferring, leasing and/or in any other way interfering with the property known as KWALE/NG’OMBENI/236 pending Appeal of the Judgment delivered on 5th September, 2025 in the Chief Magistrate’s Court Land Case No. E018 of 2020 (Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others) and all other consequential orders arising therefrom on terms and conditions that are just in the circumstances;
d) That this Honourable Court be pleased to grant the Applicants leave to appeal out of time and to treat the draft Memorandum of Appeal annexed herewith as duly filed; and
e) That the costs of this Application be provided for.
5. The application is premised on the grounds, testimonial facts and averments made out under the twenty three (23) Paragraphed Supporting Affidavit of ABEID MAJIBU MWACHILEO, the 1 st Appellant/Applicant herein, sworn and dated on 28 th November, 2025 together with two annexures marked as annexure “A” being copies of the Draft Memorandum of Appeal and the impugned Judgment of the trial Court delivered on 5 th September, 2025. He averred as follows:-
a) For the sake of context, the genesis of this application is traceable to the Judgment of Hon. L.T. Lewa, the Senior Principal Magistrate, delivered on 5 th September, 2025 in the Chief Magistrate’s Court at Kwale in Land Case No. E018 of 2020 – Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others .
b) By the said Judgment, the trial Court dismissed with costs the Appellants/Applicants’ suit which sought, inter alia, a declaration that all that parcel of land known as Title Number KWALE/NG’OMBENI/236 (hereinafter referred to as “the suit property”) had always been the property of the late Mwinyi Mwachongwa and that his daughter, the late Mwanamwinyi Kuyumbwa Mwinyi, held the same in trust for all the beneficiaries of his lineage; a permanent injunction restraining the Respondents from alienating the suit property;
c) An order that the Registrar be rectified to include the 1 st and 2 nd Appellants/Applicants as co-trustees.
d) The trial Court, upon evaluating the evidence tendered before it, held that the suit property was demarcated, surveyed and recorded in the sole name of Mwanamwinyi Kuyumbwa Mwinyi on 11 th July, 1975 without any qualification that she held it as a trustee.
e) It held that the Appellants/Applicants failed to discharge the burden of proof cast upon them under Sections 107 and 109 of the Evidence Act, Cap. 80.
f) That the title held by the Respondents, having devolved upon them through Succession Cause No. 133 of 2019 before the Kadhi’s Court, was indefeasible and only impeachable on the grounds set out under Sections 26 (1) and 80 (1) of the Land Registration Act, No. 3 of 2012; and that the Kadhi’s Court order remained uncontested. The suit was accordingly dismissed with costs.
g) Being aggrieved and dissatisfied with the said Judgment, they intend to appeal against the whole of it, which appeal, in their estimation, has high chances of success.
h) Due to the delay in obtaining the Judgment of the lower Court, their intention of appealing within the requisite statutory timeframe of thirty (30) days was impeded through no fault of their own, hence their prayer for leave to appeal out of time and for the annexed draft Memorandum of Appeal to be deemed as duly filed.
i) Being apprehensive that, in view of the delayed notification of the Judgment, the Respondents may proceed to sell the suit property to their disadvantage, and that indeed in the intervening period the Respondents have been entertaining likely purchasers to come and view the suit land.
j) Unless the orders sought was granted, they stood to suffer irreparable loss and great prejudice, and the intended appeal will be rendered nugatory.
k) Finally, the Appellants/Applicants averred that the application was brought timeously and without unreasonable delay, having been filed only about a week after they received the subject Judgment from the CTS Portal, and that they have annexed a copy of the Draft Memorandum of Appeal together with the impugned Judgment in demonstration of their bona fides.
III. Replying Affidavit by the 1 st , 2 nd & 3 rd Respondents
6. Upon being served, the Respondents opposed the application through the seventeen (17) Paragraphed Replying Affidavit of SALIM SAID JABU, the 1 st Respondent herein, sworn and dated on 6th February, 2026 together with the annexures marked as “SSJ - 1”, “SSJ - 2”, “SSJ - 3” and “KBM - 1” annexed thereto. He averred as follows that:-
a) In stiff opposition to the application, the 1 st Respondent deponed that the Appellants/Applicants instituted the suit at the Magistrate’s Court in the year 2020 and the Respondents successfully defended and prosecuted it for the last five (5) years.
b) The Respondents had been deprived of the use of the suit property by the Appellants/Applicants who had continued to trespass upon and cultivate the same; and that by allowing the intended appeal, the Respondents would be deprived of the fruits of the Judgment delivered on 5 th September, 2025.
c) On the advice of his Advocates on record, that an application of this nature must be made without unreasonable delay; that the Appellants/Applicants had not demonstrated good and sufficient cause for not filing the appeal in time.
d) They had instead come to equity with unclean hands and shifted blame onto the Court while they themselves are guilty of not attending Court when the matter came up for Judgment.
e) It was not the first time the Appellants/Applicants neglected their duty to attend Court, noting that they were the Plaintiffs before the trial Court. To wit, on 30 th May, 2025 when the matter was scheduled, and similarly on 30 th July, 2025, 27 th August, 2025 and 5 th September, 2025, the Appellants/Applicants were not in Court when the matter was scheduled for the delivery of the Judgment.
f) Contrary to the Appellants/Applicants’ averments, the Judgment was delivered virtually on 5 th September, 2025 and that he was present in his Advocates’ chambers when the same was delivered in the absence of the Plaintiffs. He annexed and marked as “SSJ - 1” a copy of his Advocates on record’s Court Attendance Notes and a screenshot of his Advocates on record’s WhatsApp group update of 5 th September, 2025.
g) The Appellants/Applicants were indolent in failing to attend Court on 5 th September, 2025 and that their averment that both parties were absent and that the Judgment was “delivered” on 12 th November, 2025 was misleading and an attempt to cover up their indolence.
h) The Judgment was only posted on 12 th November, 2025 on the CTS Portal after his Advocate on record inquired on the Kwale Bar Bench WhatsApp Group about the Judgment being posted on CTS, and annexed a screenshot of the said inquiry marked as “SSJ - 2”.
i) On the arguability of the intended appeal, the 1 st Respondent responded seriatim to each of the ten (10) grounds set out in the Draft Memorandum of Appeal, contending in the main that the learned trial Magistrate correctly applied her mind to the facts, the law and the circumstances of the case.
j) Both the Land Registrar and the Adjudication Officer confirmed to the trial Court that the late Mwanamwinyi Kuyumbwa Mwinyi was never recorded as holding the suit property in trust of anyone or as a trustee; that no dispute was recorded or filed against the recorded owner at the time of demarcation and registration; and that the Appellants/Applicants were aware of the succession proceedings at the Kadhi’s Court but neither challenged the same nor appealed the orders stemming therefrom. He annexed a copy of the Judgment dated 5 th September, 2025 marked as “KBM - 1”.
k) The intended appeal was a mere academic exercise with no chance of success; that the Appellants/Applicants had not demonstrated what substantial loss they stand to suffer; and that the Court must balance the interests of the Applicants against those of a successful litigant who ought not to be deprived of the fruits of his Judgment.
l) He further deponed that should the Court allow the application, the Respondents will suffer prejudice; that the Appellants/Applicants are in occupation of the suit property and have been felling trees even after the Court pronounced itself, placing the property at risk of going to waste; and that he has reported the matter to the Ng’ombeni Police Station, annexing a copy of the Occurrence Book (OB) extract marked “SSJ - 3”.
m) Finally, the 1 st Respondent deponed, on the advice of his Advocates, that the Appellants/Applicants are required to meet the threshold demonstrated in the celebrated case of “ Giella – Versus – Cassman Brown & Company Limited (1973) EA 358” , which they have failed to do, having demonstrated neither the existence of a prima facie case nor injury incapable of adequate compensation in damages. He termed the application flimsy, frivolous, scandalous and an abuse of the Court process, and prayed that it be dismissed with costs.
IV. Submissions
7. On 30 th April, 2026 while all the parties were present before the Court, they were directed to canvass the application by way of written submissions.
8. Subsequently, all parties complied. Pursuant to that the Honourabe Court reserved 16 th July, 2026 as the day to deliver the Ruling accordingly.
A. The Written Submissions by the Appellants/Applicants
9. The Law Firm of Messrs. Akanga Alera & Associates Advocates filed written submissions dated 9 th March, 2026 on behalf of the Appellants/Applicants. Mr. Akanga Advocate rehashed the grounds on the face of the application and submitted that from the Replying Affidavit filed in opposition to the motion, it is clear that the Respondents’ Counsel was present during the delivery of the Judgment but thereafter chose to keep silent and let the thirty (30) days limited for preferring a Memorandum of Appeal lapse; and that though under no obligation, that active choice to remain silent moved the Appellants/Applicants to the position in which they now find themselves.
10. Counsel submitted that the grievance raised in the proposed appeal is that the Appellants/Applicants’ great grandmother, Mwanamwinyi, inherited the suit land from her father Mwinyi Mwachongwa; that at the time of land adjudication she was the oldest surviving child of Mwinyi Mwachongwa; that all the descendants of Mwinyi Mwachongwa among the five siblings of Mwanamwinyi have always lived on the suit land to date; that her four (4) siblings were buried on the land and the great grandchildren live there to date; and that Mwanamwinyi was therefore registered in trust of herself and all her siblings and their descendants, who have nowhere else to go or live.
11. It was submitted that it is trite law that an order for injunction pending appeal is guided by the same principles as those guiding a stay pending appeal, and that the Court must be satisfied of three factors, namely: substantial loss; that the application must have been made within reasonable time; and security for the due performance of the decree or orders. On substantial loss, Counsel submitted that the same would be the permanent loss of the Appellants/Applicants’ home as they have known it since they were born. On timeliness, the Learned Counsel submitted that the Appellants/Applicants brought the application as soon as they became aware of the existence of the Judgment, delay being construed from the circumstances of each case on its own merit. The Learned Counsel further submitted that the grounds laid out in the Memorandum of Appeal disclose an arguable appeal.
12. To buttress those propositions, the Learned Counsel placed reliance on the authorities of:- Kenya Power & Lighting Company Limited – Versus – Kigaita Ngare Unduthu & 36 Others [2020] eKLR and Kenya Shell Limited – Versus – Benjamin Karuga Kibiru & Another [1986] eKLR , and urged the Court to grant the orders sought.
B. The Written Submissions by the Respondents
13. The Law Firm of Messrs. Chimera, Kamotho & Company Advocates LLP filed written submissions dated 2 nd April, 2026 on behalf of the Respondents. M/s. Kimani Advocate isolated two (2) issues for determination, namely: whether the application was merited; and who should bears the costs.
14. On the first issue. The Learned Counsel submitted that an application of this nature was guided specifically by Order 42 Rule 6 (6) of the Civil Procedure Rules, 2010 and the principles in the case of:- “ Giella – Versus – Cassman Brown (Supra)” . The Learned Counsel submitted that the said sub-rule donates to this Court discretionary power to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from the sub - ordinate Court has been complied with; and that by dint of the provision of Section 79G of the Civil Procedure Act, Cap. 21, every appeal from a subordinate Court to the High Court must be filed within thirty (30) days from the date of the decree or order appealed against.
15. The Learned Counsel contended that the Appellants/Applicants had not complied with the mandatory procedure for filing of an appeal. She averred that the Judgment of the sub - ordinate Court was delivered on 5 th September, 2025 and the thirty (30) days lapsed on 5 th October, 2025; that the Appellants/Applicants’ repeated neglect and casual approach caused the delay; and that their indolence in failing to attend Court was not an excusable mistake but rather a tactic meant to deliberately delay the cause of justice. To buttress on these assertion, reliance was placed on the case of “ Njuca Consolidated Company Ltd – Versus – Commercial International Bank & 2 Others [2025] KEHC 2990 (KLR)” where the Court, citing “ Bains Construction Co. Ltd – Versus – John Mzare Ogowe (2011) eKLR” , observed that mere inaction by an advocate was not an excusable mistake which the Court may consider with sympathy.
16. The Learned Counsel further submitted that this Court was not seized of the matter and lacked the requisite power to determine whether or not to grant the injunction sought in the exercise of its appellate jurisdiction, because there was no Memorandum of Appeal properly on record and therefore no appeal upon which the application for injunction would be based. In support thereof, the Learned Counsel cited the cases of:- “ Julius Musili Kyunga – Versus – Kenya Commercial Bank Limited & Another [2012] KEHC 342 (KLR)” , “ Raphael Mulinge Muthusi & 2 Others – Versus – Mary Ndila Nyolo [2022] KEELC 1886 (KLR)” and “ Yinda (Suing as administrator of the Late Linus Yinda Opondo) – Versus – Okumu & 3 Others [2024] KEELC 663 (KLR)” .
17. On the applicable principles, the Learned Counsel relied on the case of “ Otieno & 9 Others – Versus – Wagude & Another [2023] KEELC 16339 (KLR)” , which adopted the principles settled in “ Patricia Njeri & 3 Others – Versus – National Museums of Kenya [2014] eKLR” , to the effect that: an order of injunction pending appeal is a discretionary matter which would be exercised against an applicant whose appeal is frivolous; the discretion should be refused where it would inflict greater hardship than it would avoid; the applicant must show that to refuse the injunction would render the appeal nugatory; and the Court should also be guided by the principles in “ Giella – Versus – Cassman Brown (Supra) . The Counsel also cited “ Loyd Mugambi Maina & 19 Others – Versus – Kirumi Kiamujari Water Project [2022] KEELC 1216 (KLR)” and “ Maleto – Versus – Thini [2025] KEELC 5065 (KLR)” on the judicious, as opposed to arbitrary or capricious, exercise of discretion.
18. The Learned Counsel opined that the purpose of an injunction pending appeal is to preserve the subject matter; that the Respondents had not extracted any decree to enforce and no evidence has been tendered to substantiate that the Respondents were offering the suit property for sale; that if anything, it was the Appellants/Applicants who had been felling trees even after the sub - ordinate Court held in favour of the Respondents; and that it was the Respondents who risked the property going to waste, having reported the matter to the Ng’ombeni Police Station as evidenced by annexure as “SSJ - 3”. Reliance was placed on “ Chucha – Versus – Wamaitha & 2 Others [2023] KECA 290 (KLR)” on the meaning of the term “nugatory” .
19. On principles enshrined in “ the Giella case” , the Learned Counsel submitted that the Appellants/Applicants had not established “ a prima facie case’ , the trial Court having rightfully held that it was incumbent upon them to adduce evidence demonstrating that the suit property was registered in the name of Mwanamwinyi Kuyumbwa Mwinyi in trust of Mwinyi Mwachongwa’s lineage, which they failed to prove; that the suit property could be quantified and the Appellants/Applicants could be awarded damages should they succeed on appeal; and that the balance of convenience tilted in favour of the Respondents. Reliance was placed on the Court of Appeal decision in the case of “ Charter House Investment Limited – Versus – Simon K. Sang & 3 Others [2010] KECA 56 (KLR)” .
20. On costs. The Counsel invoked the provision of Section 27 of the Civil Procedure Act, Cap. 21 and the cases of:- “ Republic – Versus – Rosemary Wairimu Munene, Ex - Parte Applicant Ihururu Dairy Farmers Co - operative Society Limited, Judicial Review No. 6 of 2014 and Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Another (2016) eKLR” on the settled proposition that costs follow the event, and prayed that costs be awarded to the Respondents.
V. Analysis and Determination
21. I have keenly considered the Notice of Motion application dated 15 th November, 2025, the Supporting Affidavit and the annexures thereto, the Replying Affidavit and the annexures thereto, the rival written submissions by the Learned Counsel for the parties, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the applicable statutes.
22. In order to arrive at an informed, reasonable, just and fair decision, this Honorable Court has framed the following three (3) salient issues for its determination:
a) Whether the Appellants/Applicants have made out a case for the grant of leave to appeal out of time against the Judgment delivered on 5 th September, 2025 in Kwale CMELC Case No. E018 of 2020, and for the annexed draft Memorandum of Appeal to be deemed as duly filed;
b) Whether the Appellants/Applicants are entitled to a temporary injunction against the Respondents over the suit property, being Title Number KWALE/NG’OMBENI/236, pending the hearing and determination of the intended appeal; and
c) Who should bear the costs of the application.
ISSUE No. a) Whether the Appellants/Applicants have made out a case for the grant of leave to appeal out of time against the Judgment delivered on 5 th September, 2025 in Kwale CMELC Case No. E018 of 2020, and for the annexed draft Memorandum of Appeal to be deemed as duly filed;
23. Before proceeding on with the analysis under this sub – heading, the Honourable Court wishes to extrapolate of some brief background of the matter. The application arose from the Judgment delivered by the Lower trial Court -n civil case numbers “ the Chief Magistrate's Court at Kwale in CM ELC Case No. E018 of 2020, Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others” , on 5 th September, 2025, whereby the Appellants/Applicants’ suit was dismissed. Dissatisfied with the said decision, the Appellants/ Applicants expressed their intention to challenge the entire Judgment before this Court.
24. The Appellanats/Applicants contend that although the Judgment was delivered on 5 th September, 2025, the Court communicated the existence of the Judgment through the Court Tracking System (CTS) on 12 th November, 2025, thereby occasioning delay in lodging their appeal within the statutory thirty (30) days stipulated under Section 79G of the Civil Procedure Act2, Cap. 21. Consequently, they sought for leave to file the intended appeal out of time together with interim preservatory orders over Land Parcel Number Kwale/Ng'ombeni/236 pending the hearing and determination of the intended appeal.
25. From the pleadings filed herein, it was evident that the dispute concerns ownership and occupation of Land Parcel Number Kwale/Ng'ombeni/236, with the Appellants/Applicants asserting beneficial interests founded upon alleged customary trust and inheritance, while the Respondents maintain that they were the absolute registered and legal proprietors whose title was lawfully upheld by the trial Court after a full hearing spanning approximately five years.
26. Having carefully considered the pleadings, affidavits, annextures, written submissions and authorities filed by the respective parties, this Court now proceeds to determine whether sufficient grounds had been established to warrant the grant of leave to appeal out of time and the grant of an injunction pending the intended appeal. That is adequate on facts.
27. Now turning to this Sub heading. The Honourable Court wishes to deliberate on the relief sought by the 1 st , 2 nd , 3 rd , 4 th , 5 th and 6 th Appellant/Applicants for this Court to be pleased to allow them to appeal against the Judgment of Hon. L.T. Lewa, the Senior Principal Magistrate, delivered on 5 th September, 2025 in “ the Chief Magistrate’s Court at Kwale in Land Case No. E018 of 2020 – Abeid Majibu Mwachileo & 5 Others – Versus – Salim Said Jabu & 2 Others. The issue of extension of time to file appeal from the lower court to this Court are governed under the provision of Section 79G of the Civil Procedure Act, Cap. 21. It provides that: -
A “ Every appeal from a Sub - Ordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order .
B: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time”
28. Similarly, the provision of Section 16A(1) and (2)of the Environment and Land Court Act, No. 19 of 2011 provides that:-
A)“Every appeal from a sub - ordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant a copy of the decree or order.
B)Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time”.
29. However, the principles that guide the court in the exercise of its discretion to extend time for filing an appeal out of time are governed under the provisions of Section 79G and 95 of the Civil Procedure Act, Cap. 21 and Order 50 Rules 6 and 7 of the Civil Procedure Rules, 2010
Section 79G provides:- Time for filing appeals from Sub – ordinate courts – Every appeal from the sub – odinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
Section 95 provides - Enlargement of Time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Act, the Court may, in its discretion, from time to time, enlarge such period, even though originally fixed or granted may have expired.
Order 50 ( 6 ):- Power to enlarge Time:- Where a limited time has been fixed for the doing of any act prescribed or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.
30. Furthermore, these principles exhaustively and comprehensively were laid down by the Supreme Court in the case of “ Nicholas Kiptoo Arap Salat – Versus - IEBC & 7 Others (2014) eKLR , as follows:-
“……it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.
“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:
1) extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court;
2) a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;
3) whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;
4) where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;
5) whether there will be any prejudice suffered by the Respondents, if extension is granted;
6) whether the application has been brought without undue delay ; and
7) whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]
31. Similarly, the Court of Appeal in the case of “ Thuita Mwangi – Versus Kenya Airways Limited (2003) eKLR” quoted with approval the case of “ Leo Sila Mutiso – Versus - Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997 ) (unreported) where the court set out guidelines on applications for extension of time to file appeals: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay : secondly, the reason for the delay : thirdly (possibly), the chances of the appeal succeeding if the application is granted : and, fourthly, the degree of prejudice to the Respondent if the application is granted ”.
32. Therefore, it is now settled that a court of law has unfettered discretion to extend time to appeal which discretion has to be exercised judiciously as restated in the case of:- “ Omar Shurie – Versus - Marian Rashe Yafar (2020) eklr as follows:-
“It is now well settled that the decision whether or not to extend the time for appealing
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