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JudgmentABISAG MBANDI MUNENE VS ROSALINA WANJIRU KINYUA4 min read

ABISAG MBANDI MUNENE VS ROSALINA WANJIRU KINYUA

High Court at Embu High Court · · Lucy Njuguna


  1. The applicant filed a notice of motion dated 05th September 2024, being supported by the grounds set out on its face and the facts deposed in the supporting affidavit thereof. The orders sought are as follows:
    1. Spent;
    2. Spent;
    3. The honourable court be pleased to grant the Applicant leave for the firm of Mburu W & Company Advocates to come on record for her instead of the firm of Nyawira Mwaniki & Company Advocates and the annexed notice to Act in person be deemed to be duly filed;
    4. Spent;
    5. Spent;
    6. The Applicant be granted leave to appeal out of time the judgment

delivered in EMBU SCCCOMM E011 OF 2024 on 26th June 2024 and the consequential orders emanating therefrom;

    1. The costs of this application be provided for.
  1. The applicant deposed that she is keen on appealing against the decision of the adjudicator but she delayed in appealing against the decision. That the delay was occasioned by her advocate on record at the time of judgment who failed to notify her of entry of the said judgment. That she was not able to obtain a copy of the impugned judgment in good time to lodge an appeal. She deposed that he is bound to suffer substantial loss if the orders sought are not granted and yet her intended appeal has high chances of success. That since she has fallen out with her advocate at trial, the court should grant her new advocate audience in this appeal.
  2. The application was opposed through a replying affidavit in which the respondent stated that the applicant does not deserve the orders sought because he has been indolent. That if the orders are sought, she will be denied the fruits of her judgment. That the appeal does not have any chances of success.
  3. The application was canvassed by way of written submissions.
  4. The applicant submitted that through her pleadings, she has made out a case to warrant issuance of the orders sought. She relied on the cases of Njoroge v Kimani (Civil Application Nai E049 of 2022). [2022] KECA 1188 (KLR) and Sokoro Savings and Credit Co-operative Society Ltd v Mwamburi (Civil. Application E032 of 2022) [2023] KECA 381 (KLR). She urged that since leave to appeal out of time is granted through the court’s discretion, the court should not deny her a chance to ventilate her case on appeal.
  5. The respondent submitted that the application seeking leave to appeal out of time was filed 3 months after the judgment was entered and the delay has not been sufficiently explained. She relied on the case of Ombeo v. Kenga (Miscellaneous Application E165 of 2023) [2023] KEHC 23047 (KLR) and Mwangangi v. Mugi (Civil Appeal 1 of 2023) [2024] KEHC 6321 (KLR). She stated that equity aids the vigilant and, in this case, the applicant missed her opportunity to move the court sooner, thus she is undeserving of the orders sought.
  6. The issue for determination is whether the application has merit.
  7. The court may grant leave to appeal out of time if there is a satisfactory explanation for the delay if the same is inordinate. Section 79G of the Civil Procedure Act state as follows:

“Every appeal from a subordinate 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 a good and sufficient cause for not filing the appeal in time.”

  1. The applicant brought his application seeking leave to appeal out of time 3 months after the impugned judgment was pronounced. She stated that the reason for delay is that her advocate failed to inform her on time that judgment had been entered against her. That as a result, she was unable to procure copies of the judgment for appeal purposes on time, thus making this application necessary. Through the same application, she seeks to have a new advocate come onboard in this appeal in light of Order 9 Rule 9 of the Civil Procedure Rules, which prayer is unopposed. 
  2. Leave to appeal out of time may be granted at the court’s discretion considering the circumstances of the case. It is my view that the explanation provided by the applicant for the delay is persuasive to this court. This court also notes that by finding in favour of the applicant, the rights of the respondent to enjoy the fruits of her judgment are put on hold pending determination of the appeal. These rights are to be balanced in order for justice to be served. In the case of Kamuti v Kariuki (Miscellaneous Civil Cause E001 of 2023) (2023) eKLR the court observed that:

“The ultimate goal and purpose of the justice system is to hear and determine disputes fully.  It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out unless for a good reason.”

  1. Therefore, I find that the application is meritorious and it is hereby allowed with orders as follows:
    1. The applicants are hereby granted leave to appeal out of time against the judgment in EMBU SCCCOMM E011 OF 2024 on 26th June 2024 and the consequential orders emanating therefrom;
    2. Leave is hereby granted to the firm of Mburu W & Company Advocates to come on record instead of the firm of Nyawira Mwaniki & Company Advocates; and
    3. The cost of the application shall abide the outcome of the appeal.  
  2. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    ABISAG MBANDI MUNENE VS ROSALINA WANJIRU KINYUA ABISAG MBANDI MUNENE VS ROSALINA WANJIRU KINYUA