1. Before this Court is the Notice of Motion dated 24th November 2025 by the Applicants, Amon Obiero Rajab and Alfred Ochieng Anyango, seeking leave to file and serve a Memorandum of Appeal out of time against the judgment delivered on 22nd October 2025 in Keroka MCCC E057 of 2022, and for the annexed draft Memorandum of Appeal to be deemed as duly filed upon payment of the requisite court fees.
2. The Motion is brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, and is supported by the Supporting Affidavit sworn by Amon Obiero Rajab on 24th November 2025.
3. The Respondent, Masega Nyaboga, opposes the application through the Replying Affidavit sworn on 05th December 2025, contending that the delay is inordinate and unexplained, that the intended appeal is not arguable, and that he stands to suffer prejudice should time be enlarged.
4. The material chronology is not contested. The judgment sought to be appealed from was delivered on 22nd October 2025. By operation of Section 79G of the Civil Procedure Act, the statutory period for filing an appeal lapsed on 21st November 2025. The present application was lodged on 24th November 2025, shortly after the lapse of the prescribed period.
5. The Applicants explain the delay by reference to constrained economic circumstances prevailing at the material time, which impeded prompt mobilisation of resources for purposes of filing the appeal. They further depone that once circumstances permitted, counsel was instructed and a draft Memorandum of Appeal dated 22nd October 2025 was prepared and annexed to the application.
6. The applicable legal framework is settled. Extension of time is a discretionary remedy, to be exercised judiciously. The guiding considerations were articulated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 (CA) and affirmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others. The Court considers the length of the delay, the explanation for the delay, whether the intended appeal is arguable, and the prejudice, if any, to the respondent.
7. On the length of delay, the delay herein is brief. The application was filed only a few days after expiry of the statutory period. In the circumstances of this case, such delay cannot be described as inordinate.
8. With respect to the explanation for the delay, while economic hardship is not a universal justification, the explanation must be evaluated contextually. The delay complained of is minimal, and there is no indication of deliberate indolence or abuse of the court process. Considered against the short duration involved, the explanation is not implausible.
9. As to whether the intended appeal is arguable, the Court is not called upon at this interlocutory stage to determine the merits of the appeal. It suffices that the appeal discloses at least one bona fide issue deserving appellate consideration. The draft Memorandum of Appeal raises questions touching on jurisdiction, the applicability of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and the treatment of claims for damages alleged to have arisen after termination of an asserted tenancy. Those grounds cannot, on their face, be dismissed as frivolous.
10. On prejudice, the Respondent asserts that he will suffer prejudice if time is enlarged. However, no specific prejudice has been demonstrated beyond the ordinary inconvenience attendant to litigation. Such inconvenience is compensable by costs. On the other hand, declining the application on account of a minimal delay would unduly impede the Applicants’ right of appeal.
11. Weighing all the relevant considerations, and bearing in mind the overriding objective under Sections 1A and 1B of the Civil Procedure Act, the Court is satisfied that this is an appropriate case for the exercise of discretion in favour of the Applicants.
12. In the result, the Notice of Motion dated 24th November 2025 is found to have merit and it is hereby ordered:
1) The Applicants are granted leave to file and serve the Memorandum of Appeal out of time.
2) The Memorandum of Appeal shall be filed and served within seven days from the date hereof.
3) Costs of the application shall be in the appeal.
4) This being a miscellaneous file, it is hereby closed
2. The Motion is brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, and is supported by the Supporting Affidavit sworn by Amon Obiero Rajab on 24th November 2025.
3. The Respondent, Masega Nyaboga, opposes the application through the Replying Affidavit sworn on 05th December 2025, contending that the delay is inordinate and unexplained, that the intended appeal is not arguable, and that he stands to suffer prejudice should time be enlarged.
4. The material chronology is not contested. The judgment sought to be appealed from was delivered on 22nd October 2025. By operation of Section 79G of the Civil Procedure Act, the statutory period for filing an appeal lapsed on 21st November 2025. The present application was lodged on 24th November 2025, shortly after the lapse of the prescribed period.
5. The Applicants explain the delay by reference to constrained economic circumstances prevailing at the material time, which impeded prompt mobilisation of resources for purposes of filing the appeal. They further depone that once circumstances permitted, counsel was instructed and a draft Memorandum of Appeal dated 22nd October 2025 was prepared and annexed to the application.
6. The applicable legal framework is settled. Extension of time is a discretionary remedy, to be exercised judiciously. The guiding considerations were articulated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 (CA) and affirmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others. The Court considers the length of the delay, the explanation for the delay, whether the intended appeal is arguable, and the prejudice, if any, to the respondent.
7. On the length of delay, the delay herein is brief. The application was filed only a few days after expiry of the statutory period. In the circumstances of this case, such delay cannot be described as inordinate.
8. With respect to the explanation for the delay, while economic hardship is not a universal justification, the explanation must be evaluated contextually. The delay complained of is minimal, and there is no indication of deliberate indolence or abuse of the court process. Considered against the short duration involved, the explanation is not implausible.
9. As to whether the intended appeal is arguable, the Court is not called upon at this interlocutory stage to determine the merits of the appeal. It suffices that the appeal discloses at least one bona fide issue deserving appellate consideration. The draft Memorandum of Appeal raises questions touching on jurisdiction, the applicability of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and the treatment of claims for damages alleged to have arisen after termination of an asserted tenancy. Those grounds cannot, on their face, be dismissed as frivolous.
10. On prejudice, the Respondent asserts that he will suffer prejudice if time is enlarged. However, no specific prejudice has been demonstrated beyond the ordinary inconvenience attendant to litigation. Such inconvenience is compensable by costs. On the other hand, declining the application on account of a minimal delay would unduly impede the Applicants’ right of appeal.
11. Weighing all the relevant considerations, and bearing in mind the overriding objective under Sections 1A and 1B of the Civil Procedure Act, the Court is satisfied that this is an appropriate case for the exercise of discretion in favour of the Applicants.
12. In the result, the Notice of Motion dated 24th November 2025 is found to have merit and it is hereby ordered:
1) The Applicants are granted leave to file and serve the Memorandum of Appeal out of time.
2) The Memorandum of Appeal shall be filed and served within seven days from the date hereof.
3) Costs of the application shall be in the appeal.
4) This being a miscellaneous file, it is hereby closed