'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
HIGH COURT MISC. CIVIL APPL NO. E319OF 2024
ELIZABETH KALEKYE ............................................................... APPELLANTAPPLICANT
VERSUS
MARTIN MUTHEE......................................................................................RESPONDENT
RULING
1. This ruling is on the Applicant’s application dated 25.10.2024. It is brought under the provisions of Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 79G and 3A of the Civil Procedure Act and all other enabling provisions of the law. The application is premised on the grounds on the face of the application.
2. The Applicant herein prays that this court does grant leave to the applicant to appeal out of time against the judgement of Hon. E. Kimaiyo Suter (PM) delivered on 12.09.2024 and that the attached Memorandum of Appeal be deemed as duly filed.
3. The application is supported by the supporting affidavit of Kisiang’ani Eddah and premised on grounds that:-
a) THAT that the appeal has good chances of success;
b) THAT the delay in filing the appeal was inadvertent and excusable;
c) THAT the application is brought in good faith and as such no prejudice shall be suffered by the Respondent if the application is allowed;
d) THAT the applicant is willing to abide by any reasonable and just consideration that this court may impose in allowing this application;
e) THAT it is in the interest of justice to allow the application
4. The application is opposed by Martin Muthee the Respondent vide his Replying Affidavit sworn on 20.01.2024. The judgement in the trial court (Mavoko Civil Suit No. E779 of 2022) was delivered on 12/09/2024 and the Applicant was awarded Ksh.280,550 as damages plus interest and costs. That the Applicant has been indolent in filing the intended appeal seeing that more than a month from the date of the judgement of the trial court was delivered had lapsed. The Respondent further avers that no tangible explanation or sufficient cause has been given as to the extreme delay in filing the appeal. That the Applicant’s reason not to file the appeal in time is that the judgement was delivered in the absence of the Applicant’s counsel is not good aznd sufficient enough to grant the orders sought since the Applicant’s Counsel was aware of the date of judgement as they were in court when the judgement date was given.
5. The Respondent states that he has since settled and paid to the Appellant/Applicant through his advocates on record the judgement sum of Kshs.280,550 in Civil Suit No. E779 of 2022 via Cheque No. 036578.
6. The Respondent states that the appeal has no chances of success and the application should be dismissed with costs to the Respondent.
7. Directions were given for the application to be heard by way of written submissions. Both parties complied. The Applicants’ submissions are dated 17.02.2025.2024 filed by the law firm of WAIGANJO WACHIRA & COMPANY ADVOCATES whilst the Respondents’ submissions are dated 18.02.2025 filed by the law firm of OWITI, OTIENO & RAGOT ADVOCATES
Analysis and determination
8. I have considered the application, the supporting affidavit, the replying affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the single issue for determination is whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time;
9. Section 79G of the Civil Procedure Act 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 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.
10. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
11. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
12. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
13. Applying the above principles to the present case, the judgment herein was delivered on 24.09.2024 and the appeal ought to have been filed by 23.10.2024. The Applicant filed the current application together with the annexed Memorandum of Appeal on 30.10.2024. This is about seven (7) days outside the time limited for filing an appeal.
14. It is my position that the Applicants’ previous advocate in the law firm on record cannot be faulted at all. The Applicants would have been expected to reach the law firm soon after giving instructions on the appeal and inquire on the progress. It is trite law that Parties have the responsibility to show interest in and to follow up on their cases even when they are represented by counsel.
15. The Applicant has attributed the delay in filing her appeal to a mistake of her Counsel for inadvertently failing to diarize the judgement date. The Respondent argues that is reason is not only implausible, but also insufficient to warrant the grant of the orders sought since the Applicant’s counsel was aware of the date of the judgment as they were present in Court on 8th August 2024 when the date was given, a fact that remains uncontroverted. The Applicant’s counsel’s failure to diarize the date of judgment and appear in court despite having been present when the date was given is inaction on her part.
61. In the case of Dilpack (K) Ltd Vs William Muthama Kitonyi [2018] eKLR Machakos HCCA 142/2013, Odunga J. dismissed a similar application and stated as follows:
“In this case the applicant has not expounded on the nature and quality of the inadvertence alluded to. This seems to be a case of mere inaction and as was held in Berber Alibhai Mawji vs. Sultan Hasham Lalji & 2 Others [1990-1994] EA 337, inaction on the part of an advocate as opposed to error of judgment or a slip is not excusable. Therefore, pure and simple inaction by counsel or a refusal to act cannot amount to a mistake, which ought not to be visited on the client.”
13. Justice F Muchemi while dismissing a similar application in Mwangangi v Mugi (Civil Appeal 1 of 2023) [2024] KEHC 6321 (KLR) stated as follows with regards to mistakes of counsel:
“Whereas it is true that mistakes of an advocate should not be visited on a litigant, it is also true that suits belong to the parties not their advocates. Thus where a litigant has instructed an advocate in a matter, he or she has an obligation to follow up on instructions given to ensure that they were executed and executed in good time. This principle was enunciated in the Court of Appeal in Habo Agencies Limited V Wilfred Odhiambo (2015) eKLR where the court stated:
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
14. Considering the seven (7) days delay cannot really be termed as an inordinate delay, however the reasons for the delay have not been satisfactorily explained to the court as required by the law. In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal.
16. It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-
“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
17. I have perused the Applicant’s advocate supporting affidavit. The Advocate has confirmed that she was served with a letter dated 15th October 2024 marked as exhibit EK-1 from the Respondent’s advocate requesting for more time to settle the judgment sum. Despite receiving the said letter, the Applicant nor her advocate did not indicate any intention to appeal against the judgement. This did not also alert them on taking action on any intended appeal but rather they proceeded to receive without protest, the judgment sum of Kshs.280,550 on 7th November 2024, via cheque number 036578 that was forwarded vide the Respondent’s letter dated 6th November 2024(annexed and marked as exhibit MM-2 and MM-3 in the Respondent’s Replying Affidavit.)
18. Based on the foregoing, I find that the application herein is clearly an afterthought and has been brought in bad faith. The Applicant’s actions disentitle her from seeking the discretionary orders sought. I am guided by the decision in Ruth Shikanda (Suing as Legal Representative on behalf of the Estate of Agnes Ayori Ashiembi (DCD) v Sibed Transport Company Ltd [2020] KEHC 1871 (KLR) where Justice Aburili in dismissing a similar application stated as follows:
“It is clear that the applicant, after receiving and utilizing the decretal sum plus costs as assessed by the court is when she now purports to challenge quantum of damages awarded to her. That in my humble view is an afterthought and an act of bad faith. Litigation must come to an end and especially where decree has been settled without any protest or contestation from the decree holder…………………………………………… Further in Dickson Miriti Kamonde Vs Kenya Commercial Bank Ltd [2006] eKLR, it was held that: “……the delay cannot be excused and an indolent party must reckon with consequences of inaction”.
19. In Gideon Sitelu Konchella Vs Daima Bank Ltd [2013]eKLR citing Mobil Kitale Service station Vs Mobil Oil(K) Ltd and Another [2004] eKLR, it was held:
“It is the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously. The overriding objectives of the Act and the Rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.””
20. Additionally, there is no evidence by the Applicant asking for certified copies of proceedings and or judgment of the trial court to enable her file an appeal. Neither has the Applicant annexed any certificate of delay to demonstrate that it was the trial court that delayed supplying her with the copies of proceedings and or judgment.
21. The Applicant through her advocate has annexed the draft memorandum of appeal which raise six grounds to appeal. I have perused the intended Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on its assessment of damages which they claim to be on the lower side. It is my considered view that the grounds set in the draft Memorandum of Appeal do not demonstrate an arguable appeal nor do they raise pertinent issues of law.
22. It is trite that the law aids the vigilant and not the indolent. The Applicant and her Counsel have been indolent in filing this application which she should have filed shortly after they received the letter requesting for time to settle the decretal sum from the Respondent’s Counsel which was within the timeline for filing the Appeal.
23. In the circumstances; I find that the Applicant has failed to demonstrate good and sufficient cause for not filing the appeal in time and therefore this Court declines to exercise its discretion in the Applicant''s favour.
24. Consequently, I do find the Applicant’s application dated 25.10.2025 is unmerited and the same is dismissed with no order as to costs.
25. This Miscellaneous is hereby closed. It is hereby so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 25TH NOVEMBER 2025
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH NOVEMBER 2025
In the presence of :-
Ms. Atieno…….................... for Applicants
Ms. Ndiege for Mr, Waiganjo............ for Respondent
Milly.......... Court Assistant
'
IN THE HIGH COURT OF KENYA AT MACHAKOS
HIGH COURT MISC. CIVIL APPL NO. E319OF 2024
ELIZABETH KALEKYE ............................................................... APPELLANTAPPLICANT
VERSUS
MARTIN MUTHEE......................................................................................RESPONDENT
RULING
1. This ruling is on the Applicant’s application dated 25.10.2024. It is brought under the provisions of Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 79G and 3A of the Civil Procedure Act and all other enabling provisions of the law. The application is premised on the grounds on the face of the application.
2. The Applicant herein prays that this court does grant leave to the applicant to appeal out of time against the judgement of Hon. E. Kimaiyo Suter (PM) delivered on 12.09.2024 and that the attached Memorandum of Appeal be deemed as duly filed.
3. The application is supported by the supporting affidavit of Kisiang’ani Eddah and premised on grounds that:-
a) THAT that the appeal has good chances of success;
b) THAT the delay in filing the appeal was inadvertent and excusable;
c) THAT the application is brought in good faith and as such no prejudice shall be suffered by the Respondent if the application is allowed;
d) THAT the applicant is willing to abide by any reasonable and just consideration that this court may impose in allowing this application;
e) THAT it is in the interest of justice to allow the application
4. The application is opposed by Martin Muthee the Respondent vide his Replying Affidavit sworn on 20.01.2024. The judgement in the trial court (Mavoko Civil Suit No. E779 of 2022) was delivered on 12/09/2024 and the Applicant was awarded Ksh.280,550 as damages plus interest and costs. That the Applicant has been indolent in filing the intended appeal seeing that more than a month from the date of the judgement of the trial court was delivered had lapsed. The Respondent further avers that no tangible explanation or sufficient cause has been given as to the extreme delay in filing the appeal. That the Applicant’s reason not to file the appeal in time is that the judgement was delivered in the absence of the Applicant’s counsel is not good aznd sufficient enough to grant the orders sought since the Applicant’s Counsel was aware of the date of judgement as they were in court when the judgement date was given.
5. The Respondent states that he has since settled and paid to the Appellant/Applicant through his advocates on record the judgement sum of Kshs.280,550 in Civil Suit No. E779 of 2022 via Cheque No. 036578.
6. The Respondent states that the appeal has no chances of success and the application should be dismissed with costs to the Respondent.
7. Directions were given for the application to be heard by way of written submissions. Both parties complied. The Applicants’ submissions are dated 17.02.2025.2024 filed by the law firm of WAIGANJO WACHIRA & COMPANY ADVOCATES whilst the Respondents’ submissions are dated 18.02.2025 filed by the law firm of OWITI, OTIENO & RAGOT ADVOCATES
Analysis and determination
8. I have considered the application, the supporting affidavit, the replying affidavit and the rival submissions filed by the Parties’ counsel as well as the judicial decisions relied upon. In my view, the single issue for determination is whether the court should exercise its discretion to grant the applicant leave to file their appeal out of time;
9. Section 79G of the Civil Procedure Act 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 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.
10. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
11. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
12. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
13. Applying the above principles to the present case, the judgment herein was delivered on 24.09.2024 and the appeal ought to have been filed by 23.10.2024. The Applicant filed the current application together with the annexed Memorandum of Appeal on 30.10.2024. This is about seven (7) days outside the time limited for filing an appeal.
14. It is my position that the Applicants’ previous advocate in the law firm on record cannot be faulted at all. The Applicants would have been expected to reach the law firm soon after giving instructions on the appeal and inquire on the progress. It is trite law that Parties have the responsibility to show interest in and to follow up on their cases even when they are represented by counsel.
15. The Applicant has attributed the delay in filing her appeal to a mistake of her Counsel for inadvertently failing to diarize the judgement date. The Respondent argues that is reason is not only implausible, but also insufficient to warrant the grant of the orders sought since the Applicant’s counsel was aware of the date of the judgment as they were present in Court on 8th August 2024 when the date was given, a fact that remains uncontroverted. The Applicant’s counsel’s failure to diarize the date of judgment and appear in court despite having been present when the date was given is inaction on her part.
61. In the case of Dilpack (K) Ltd Vs William Muthama Kitonyi [2018] eKLR Machakos HCCA 142/2013, Odunga J. dismissed a similar application and stated as follows:
“In this case the applicant has not expounded on the nature and quality of the inadvertence alluded to. This seems to be a case of mere inaction and as was held in Berber Alibhai Mawji vs. Sultan Hasham Lalji & 2 Others [1990-1994] EA 337, inaction on the part of an advocate as opposed to error of judgment or a slip is not excusable. Therefore, pure and simple inaction by counsel or a refusal to act cannot amount to a mistake, which ought not to be visited on the client.”
13. Justice F Muchemi while dismissing a similar application in Mwangangi v Mugi (Civil Appeal 1 of 2023) [2024] KEHC 6321 (KLR) stated as follows with regards to mistakes of counsel:
“Whereas it is true that mistakes of an advocate should not be visited on a litigant, it is also true that suits belong to the parties not their advocates. Thus where a litigant has instructed an advocate in a matter, he or she has an obligation to follow up on instructions given to ensure that they were executed and executed in good time. This principle was enunciated in the Court of Appeal in Habo Agencies Limited V Wilfred Odhiambo (2015) eKLR where the court stated:
It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
14. Considering the seven (7) days delay cannot really be termed as an inordinate delay, however the reasons for the delay have not been satisfactorily explained to the court as required by the law. In my view, the Applicant has not given any plausible reasons for the delay in filing the appeal.
16. It is imperative that the right of appeal must be balanced against an equally weighty rigid right of the plaintiff/claimant to enjoy the fruits of the judgment delivered in his/her favour. In the case of Samvir Trustee Limited vs Guardian Bank Limited [2007] eKLR the court stated:-
“The Court in considering whether to grant or refuse an application for stay is empowered to see whether there exist any special circumstances which can sway the discretion of the court in a particular manner. But the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment. It is a fundamental factor to bear in mind that a successful party is prima facie entitled to fruits of his judgment; hence the consequence of a judgment is that it has defined the rights of a party with definitive conclusion.”
17. I have perused the Applicant’s advocate supporting affidavit. The Advocate has confirmed that she was served with a letter dated 15th October 2024 marked as exhibit EK-1 from the Respondent’s advocate requesting for more time to settle the judgment sum. Despite receiving the said letter, the Applicant nor her advocate did not indicate any intention to appeal against the judgement. This did not also alert them on taking action on any intended appeal but rather they proceeded to receive without protest, the judgment sum of Kshs.280,550 on 7th November 2024, via cheque number 036578 that was forwarded vide the Respondent’s letter dated 6th November 2024(annexed and marked as exhibit MM-2 and MM-3 in the Respondent’s Replying Affidavit.)
18. Based on the foregoing, I find that the application herein is clearly an afterthought and has been brought in bad faith. The Applicant’s actions disentitle her from seeking the discretionary orders sought. I am guided by the decision in Ruth Shikanda (Suing as Legal Representative on behalf of the Estate of Agnes Ayori Ashiembi (DCD) v Sibed Transport Company Ltd [2020] KEHC 1871 (KLR) where Justice Aburili in dismissing a similar application stated as follows:
“It is clear that the applicant, after receiving and utilizing the decretal sum plus costs as assessed by the court is when she now purports to challenge quantum of damages awarded to her. That in my humble view is an afterthought and an act of bad faith. Litigation must come to an end and especially where decree has been settled without any protest or contestation from the decree holder…………………………………………… Further in Dickson Miriti Kamonde Vs Kenya Commercial Bank Ltd [2006] eKLR, it was held that: “……the delay cannot be excused and an indolent party must reckon with consequences of inaction”.
19. In Gideon Sitelu Konchella Vs Daima Bank Ltd [2013]eKLR citing Mobil Kitale Service station Vs Mobil Oil(K) Ltd and Another [2004] eKLR, it was held:
“It is the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice by delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously. The overriding objectives of the Act and the Rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.””
20. Additionally, there is no evidence by the Applicant asking for certified copies of proceedings and or judgment of the trial court to enable her file an appeal. Neither has the Applicant annexed any certificate of delay to demonstrate that it was the trial court that delayed supplying her with the copies of proceedings and or judgment.
21. The Applicant through her advocate has annexed the draft memorandum of appeal which raise six grounds to appeal. I have perused the intended Memorandum of Appeal and the judgment of the trial court and noted that the appeal faults the trial court on its assessment of damages which they claim to be on the lower side. It is my considered view that the grounds set in the draft Memorandum of Appeal do not demonstrate an arguable appeal nor do they raise pertinent issues of law.
22. It is trite that the law aids the vigilant and not the indolent. The Applicant and her Counsel have been indolent in filing this application which she should have filed shortly after they received the letter requesting for time to settle the decretal sum from the Respondent’s Counsel which was within the timeline for filing the Appeal.
23. In the circumstances; I find that the Applicant has failed to demonstrate good and sufficient cause for not filing the appeal in time and therefore this Court declines to exercise its discretion in the Applicant''s favour.
24. Consequently, I do find the Applicant’s application dated 25.10.2025 is unmerited and the same is dismissed with no order as to costs.
25. This Miscellaneous is hereby closed. It is hereby so ordered.
RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 25TH NOVEMBER 2025
NOEL ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 25TH NOVEMBER 2025
In the presence of :-
Ms. Atieno…….................... for Applicants
Ms. Ndiege for Mr, Waiganjo............ for Respondent
Milly.......... Court Assistant
'