Introduction
1. This ruling concerns the Notice of Motion dated 10th June 2026, brought under a Certificate of Urgency. The application invokes the provisions of Section 79G and Section 95 of the Civil Procedure Act (Cap 21), Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law. Through this application, the Applicants seek the following prayers:
a. Spent
b. Spent
c. The Court do extend the time within which the Applicants may file their Memorandum of Appeal from the ruling of Hon. D.K. Matutu in Kisumu CM ELC No. E 051 of 2022 delivered on 28th April 2026.
d. The Applicants be granted leave to file an Appeal out of time against the ruling of Hon. D.K. Matutu in Kisumu CM ELC No. E 051 of 2022 delivered on 28th April 2026.
e. The costs of this application be provided for.
2. The record before this court shows that the application was duly served on the respondent through their advocates on record, M/S Staussi, Asunah & Oluoch Advocates. Despite this service, the respondent did not file any reply affidavit or grounds of opposition.
Summary of the Application
3. The application is grounded on the averments contained in the joint supporting affidavit sworn by the Applicants, Daniel Juma Ogada and Kennedy Otieno Ogada, on 10th June 2026. The applicants depose that they had previously filed an application dated 22nd September 2025, seeking to set aside an ex parte judgment and to be afforded an opportunity to testify in their defence in Kisumu MCELC/E 051/2022. A ruling dismissing that application was delivered in their absence on 28th April 2026, thereby denying them an opportunity to defend themselves.
4. The applicants aver that they are desirous of appealing against the whole of the said ruling but failed to lodge the appeal within the prescribed statutory time. They calculate the delay at approximately one month and eleven days from the date of the ruling, resulting in a delay of merely eleven (11) days beyond the permissible statutory period. They explain that this delay was partially due to their absence from the delivery of the ruling.
5. The Applicants aver that they have since requested certified copies of the typed proceedings in preparation for the intended appeal, attaching a formal request letter and an official Judiciary payment receipt as evidence. Finally, they depose that the intended appeal is plausible and has a strong likelihood of success.
Analysis and Determination
6. I have carefully considered the application, the supporting affidavit, and the annexures thereto. The sole issue for determination is whether the Applicants have met the requisite legal threshold to warrant the grant of leave to appeal out of time.
7. The statutory basis for extending the time to file an appeal is found in Section 79G of the Civil Procedure Act, which sets out the 30-day window for filing appeals and provides the basis for admitting an appeal out of time. The Section states:
“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 good and sufficient cause for not filing the appeal in time.”
8. This provision is complemented by the general discretionary powers granted by Section 95 of the Civil Procedure Act, which provides:
“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 the period originally fixed or granted may have expired.”
9. Additionally, Order 50 Rule 6 of the Civil Procedure Rules sets out the court’s power to extend time as follows:
“Where a limited time has been fixed for doing any act 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.”
10. Specific to the Environment and Land Court, Section 16A(2) of the Environment and Land Court Act mirrors this discretion, stipulating:
“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.”
11. The principles guiding the exercise of this discretion are well settled. In the foundational case of Leo Sila Mutiso v Rose Hellen Wangari Mwang, Civil Application No. 255 of 1997 (unreported), cited with approval in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR, the Court of Appeal outlined the parameters in the following terms:
“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.”
12. In the present matter, despite the motion being unopposed, the Applicant still needed to establish that the provisions and principles of law had been met. The court’s discretion cannot be exercised in a vacuum merely because the respondent is silent. Turning to the parameters of the test, the ruling intended to be appealed was delivered on 28th April 2026. The present application was filed on 10th June 2026, meaning the Applicants missed the 30-day statutory deadline by approximately 11 days. I do not find this 11-day delay to be inordinate or unreasonable.
13. Regarding the reason for the delay, the Applicants have explained that they were absent during the delivery of the ruling and subsequently had to address administrative requirements to request the typed proceedings. They have supported this explanation by producing a Judiciary payment receipt (No. RB-0942333) dated 5th June 2026, for the proceedings. I find this explanation plausible and sufficient to account for the period of delay.
14. On the arguability of the appeal, the Applicants have annexed a Draft Memorandum of Appeal. The draft raises grounds challenging the Trial Court’s finding on the validity of service upon them and the subsequent denial of their opportunity to be heard in their defence, asserting violations of the rules of natural justice. An arguable appeal is not necessarily one that must succeed, but one that is not frivolous and deserves full ventilation. The grounds raised touch on fundamental fair-hearing rights and easily meet the threshold for an arguable appeal.
15. Finally, because the Respondent elected not to oppose the motion despite service, no evidence of prejudice would be suffered by the Respondent if the extension is granted. In the premises, I find that the Applicants have shown good and sufficient cause for the delay. It is in the interests of justice that they be granted the opportunity to ventilate their intended appeal. Ultimately, I find that the application is merited.
Final Orders
16. Consequently, this court issues the following orders:
a. The application dated 10th June 2026 is hereby allowed.
b. The Applicants are granted leave to appeal out of time against the ruling of Hon. D.K. Matutu delivered on 28th April 2026, in Kisumu MCELC/E051/2022.
c. The Applicants shall file and serve the Memorandum of Appeal and the Record of Appeal within thirty (30) days from the date of this ruling.
d. The costs of this application shall abide the outcome of the intended appeal.
Delivered virtually, signed and dated at Kisumu this 9th day of July 2026.
C.C Oluoch Judge
In the presence of:
Mr Okoth for the Applicants
Faith Court Assistant