1. Before the court is the Applicant’s Notice of Motion dated 9 th April 2026 brought pursuant to Section 79 (a) and Section 95 of the Civil Procedure Act and all other enabling provisions of the law. The Applicant seeks leave to file and serve Appeal against the judgement rendered by Hon. J.O Magori on 7 th March 2024 in Limuru MCCC/E112 of 2020 out of time.
2. The application is based on the grounds set out on its face and supported by the Applicant’s Affidavit in which he averred that on 7 th March 2024, Hon. J.O Magori rendered Judgement in Magistrates Court at Limuru Law Court MCCC/E112/2020 and being dissatisfied with the said judgement desires to appeal against it and seeks leave of this Honourable Court to appeal out of time.
3. The Applicant averred that the delay in filing their Memorandum of Appeal was occasioned by factors beyond their control being that after receiving instructions to come on record in November 2025, they proceeded to draft and present a letter to the Registry requesting for typed proceedings and a certified copy of the Judgement dated 5 th December 2025 however were informed that it would take a while due to backlog.
4. Further the Applicant brings to this Honourable attention that prior to the firm of Saroni & Stevens Advocates coming on record, the applicant was represented by the firm of Kibiria & Co. Advocates which erroneously filed a Memorandum of Appeal under incorrect parties, namely HCCA/E062/2024 Kibiria & Company Advocates vs Edah Nkirote and owing to the inadvertent error of the previous advocates, the Applicant failed to lodge a proper memorandum of Appeal within the stipulated timelines.
5. The Respondent opposed the application through a Replying Affidavit dated 16 th April 2026 in which they contended that the Applicant ought to have instituted an appeal on or before 6 th April 2024 and in response to the argument that the previous counsel on record, Kibiria & Co Advocates, had erroneously filed a memorandum of appeal under incorrect parties , the respondent avers that this is untenable for the reason that the alleged appeal had also been filed out of time on 22 nd April 2024 and no reason for inordinate delay in filing the present application has been provided as the new counsel received instructions on or before 5 th December 2025.
6. The application was canvassed by way of written submissions which this court has duly considered alongside the authorities cited by the parties.
7. I have carefully considered the application and the law. The issue arising for determination is whether the applicant has met conditions for grant of leave to appeal out of time.
8. 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.
9. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has 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 where it was emphasized 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.
10. 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.”
11. Applying the above principles to the present case, the judgment herein was delivered on 7 th March 2024 however, the applicant filed the current application for leave to file the appeal out of time on 9 th April 2026. This is more than 2 years out of the time limited for filing an appeal. The applicant has attributed the delay in filing his appeal was due to delay in getting typed proceedings which it is said to have applied for on 5 th December 2025 which is 1 year 7 months after judgement was entered.
12. From the above provision, it is evident that the inability to obtain the typed proceedings does not qualify as a disability. In the court’s view, the Applicant was not vigilant in pursuing the proceedings which he pursued more than 1 year 7 months later after judgement was entered . And has not explained the silence and delay for the period.
13. For the foregoing, the court finds that the Applicant’s application dated 9 th April 2026 lacks merit. It is dismissed with no orders as to costs.
Orders accordingly.
Delivered, Dated and Signed in Nairobi this 27th Day of July 2026.
FRANCIS NYUNGU KYAMBIA
JUDGE
Page 5 of 5
2. The application is based on the grounds set out on its face and supported by the Applicant’s Affidavit in which he averred that on 7 th March 2024, Hon. J.O Magori rendered Judgement in Magistrates Court at Limuru Law Court MCCC/E112/2020 and being dissatisfied with the said judgement desires to appeal against it and seeks leave of this Honourable Court to appeal out of time.
3. The Applicant averred that the delay in filing their Memorandum of Appeal was occasioned by factors beyond their control being that after receiving instructions to come on record in November 2025, they proceeded to draft and present a letter to the Registry requesting for typed proceedings and a certified copy of the Judgement dated 5 th December 2025 however were informed that it would take a while due to backlog.
4. Further the Applicant brings to this Honourable attention that prior to the firm of Saroni & Stevens Advocates coming on record, the applicant was represented by the firm of Kibiria & Co. Advocates which erroneously filed a Memorandum of Appeal under incorrect parties, namely HCCA/E062/2024 Kibiria & Company Advocates vs Edah Nkirote and owing to the inadvertent error of the previous advocates, the Applicant failed to lodge a proper memorandum of Appeal within the stipulated timelines.
5. The Respondent opposed the application through a Replying Affidavit dated 16 th April 2026 in which they contended that the Applicant ought to have instituted an appeal on or before 6 th April 2024 and in response to the argument that the previous counsel on record, Kibiria & Co Advocates, had erroneously filed a memorandum of appeal under incorrect parties , the respondent avers that this is untenable for the reason that the alleged appeal had also been filed out of time on 22 nd April 2024 and no reason for inordinate delay in filing the present application has been provided as the new counsel received instructions on or before 5 th December 2025.
6. The application was canvassed by way of written submissions which this court has duly considered alongside the authorities cited by the parties.
7. I have carefully considered the application and the law. The issue arising for determination is whether the applicant has met conditions for grant of leave to appeal out of time.
8. 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.
9. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has 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 where it was emphasized 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.
10. 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.”
11. Applying the above principles to the present case, the judgment herein was delivered on 7 th March 2024 however, the applicant filed the current application for leave to file the appeal out of time on 9 th April 2026. This is more than 2 years out of the time limited for filing an appeal. The applicant has attributed the delay in filing his appeal was due to delay in getting typed proceedings which it is said to have applied for on 5 th December 2025 which is 1 year 7 months after judgement was entered.
12. From the above provision, it is evident that the inability to obtain the typed proceedings does not qualify as a disability. In the court’s view, the Applicant was not vigilant in pursuing the proceedings which he pursued more than 1 year 7 months later after judgement was entered . And has not explained the silence and delay for the period.
13. For the foregoing, the court finds that the Applicant’s application dated 9 th April 2026 lacks merit. It is dismissed with no orders as to costs.
Orders accordingly.
Delivered, Dated and Signed in Nairobi this 27th Day of July 2026.
FRANCIS NYUNGU KYAMBIA
JUDGE
Page 5 of 5