1. This ruling is in respect of the Notice of Motion dated 9 th April, 2026 brought pursuant to provision of Section 79G and 95 of the Civil Procedure Act seeking the leave of the court to lodge appeal out of time against the judgment delivered in Limuru MCCC/E75 of 2020 on 3 rd October, 2025.
2. The application is supported by the grounds on the face of it and the supporting affidavit of the applicant. The contention of the applicant is that she was dissatisfied by the judgment of the trial court and seeks the leave of the court to appeal out of time.
3. The applicant attributes the delay to factors beyond her control being the delay by the lower court to supply typed proceedings and certified copy of judgment. A letter dated 5 th December, 2025 has been exhibited requesting the proceedings and judgment. The applicant aver that it was not until 18 th February, 2026 when the proceedings and judgement were supplied.
4. The applicant has annexed a memorandum of appeal in the affidavit in support of the motion setting out the grounds of the appeal. It is the contention of the applicant that if the orders sought are not granted she suffer irreparable loss and damage. In any case the respondent will not suffer any prejudice if the orders are issued as she has arguable appeal with chances of success.
5. The respondent filed grounds of opposition dated 14 th May, 2026 contending that the applicant has not satisfied the mandatory threshold set out in Section 75G of the Civil Procedure Act.
6. The respondent contends that the delay of five (5) months to file the appeal has not been satisfactorily and sufficiently explained. The allegation that the delay was occasioned by delay in supply of the typed proceedings and certified copy of the judgment is misleading, untenable and legally insufficient.
7. It is the contention of the respondent under Section 79G of the Civil Procedure Act, an appeal is from the subordinate court is instituted by filing of the memorandum of appeal and not by first obtaining typed proceedings as certified copies of the proceedings and judgment are not mandatory prerequisite for filing a memorandum of appeal.
8. The respondent contends that the delay taken from 3 rd October, 2025 and 5 th December, 2025 when the request for the typed proceedings was made was not explained.
9. It is further the contention of the respondent that the applicant has not demonstrated that she applied for the decree as required under Order 42 Rule 2 of the Civil Procedure Rules. In any case it is the contention of the respondent that the alleged letter requesting the proceedings was done out of the statutory period of 30 days within which the applicant was required to file the appeal.
10. Further to the foregoing the respondent contend that the present advocates were instructed in November, 2025 yet no explanation has been offered why despite receiving the typed proceedings on 18 th February, 2026 the application herein was filed five (5) months after the advocates on record received instructions to pursue an appeal against the judgment of the trial court.
11. Further the respondent contend that the applicant has failed to exhibit the decree or order appealed against or certificate of delay issued by the lower court or proof of payment of the proceedings or correspondence evidencing consistent follow-up with the registry.
12. The respondent contend that the applicant has not demonstrated sufficient cause to warrant the exercise of the court discretion in her favour considering that the enlargement of time under Section 79G of the Civil Procedure Act is equitable in nature and cannot be exercised in favour of an indolent litigant like the applicant.
13. Further the respondent aver that the applicant has failed to demonstrate that the intended appeal is arguable or raises any bona fide issues deserving the intervention of this court. It is asserted that the annexed memorandum of appeal merely raises generalized complainants against the judgment of the trial court without identifying any specific error of law or fact committed by the trial court.
14. Finally, the respondent aver that the applicant has not demonstrated the prejudice she will suffer if the application is declined. To the contrary, the respondent stands to suffer substantial prejudice for continued denial to enjoy the fruits of the judgment if the orders are granted.
15. The application was heard by way of written submissions.
16. The applicant in her submissions contend that she has demonstrated sufficient cause to warrant the grant of the orders sought. Article 159(2)(d) of the Constitution is cited which encourage courts to administer justice without undue regard to technicalities.
17. The applicant further submits that under Section 79G and 95 of the Civil Procedure Act, the court has discretion to enlarge time. The applicant cited the cases of Edith Gichungu vs Stephen Njagi Thoithi (2014) e KLR on the factors to be considered by the court in an application for extension of time. The case of Kamlesh Mansukhalal Damki Patni vs Director of Public Prosecution is cited to support the assertion that the court exists to do justice to the parties and the doors of justice should not be closed to any party hence the applicant should be granted leave to ventilate her appeal in this court.
18. It further argued that the appeal is arguable with high chances of success and that applicant should be accorded her right to have her grievances against the trial court heard. Reliance is placed on the cases of Charles Karanja Kuru vs Charles Githinji Muigwa (2016) e KLR and Gerald M’Limbine vs Joseph Kangangi (2009) e KLR.
19. The respondent on the other hand submitted that the discretion under Section 79G of the Civil Procedure Act is judicial rather than automatic. It is the burden of the applicant to demonstrate to the court sufficient cause to warrant the exercise of the same in his/her favour. The applicant cited the case of First American Bank of Kenya vs Gulab P. Shah & 2 others (2002) E.A 65 cited with approval in the case of Dilpack Kenya Limited vs William Muthama Kitonyi (2018) KEHC 4858 (KLR) on the what the court has to consider in an application for enlargement of time to wit, the length of delay, the reasons for delay, the chances of success of the intended appeal and the degree of prejudice to the respondent.
20. The respondent submitted that the delay by the applicant was not explained sufficiently to warrant the exercise of this court’s discretion.
21. The respondent further submitted that under Order 42 Rule 1 of the Civil Procedure Rules requires mere filing of the memorandum of appeal and thereafter the decree may be filed with the leave of the court pursuant to Order 42 Rule 2 of the Civil Procedure Rules, hence no explanation has been given why the memorandum of appeal was not filed promptly. The respondent relied on the case of Peter Gichuhi vs Joseph (2020) e KLR.
22. On the delay in obtaining proceedings the respondent relied on the case of Molyn Credit Limited vs Nderitu & Another (2022) KEHC 13001 (KLR) where an application for leave to extent time to file appeal was dismissed where similar grounds of delay were proffered by the applicant.
23. The respondent further submitted that the applicant has not demonstrated that the intended appeal is arguable so as to be entitled to the prayer sought. The respondent argue that the memorandum of appeal contains generalized grounds without specificities on the substantial questions deserving intervention of the court.
24. On whether the respondent will suffer prejudice it is argued that the respondent has been kept out the fruits of the judgment since the judgment was delivered.
25. I have considered the application herein, the reply to the same and the submissions by both sides. The issue for determination in this application is whether the court should exercise its discretion and grant the applicant leave to file appeal out of time
26. Section 79G of the Civil Procedure Act under which the application is premised provides:
“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 may certify as having been requisite for the preparation and delivery to the appellant of 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.”
27. Flowing from the foregoing, it is clear that the court has discretion to grant leave to an appellant to file appeal out of time so long the applicant must demonstrate good and sufficient cause why the appeal was not filed within the prescribed period.
28. The courts have pronounced on what should be considered in an application for leave to file appeal out time. In the case of Edith Gichungu Koine vs Stephen Njagi Thoithi (2014) cited by the respondent the Court of Appeal rendered itself thus:
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but not limited to, the period of delay, the reasons for delay, the degree of prejudice to the respondent if the application is granted and whether the matter rises issues of public importance, amongst others.”
29. Further the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC & 7 Others (2014) e KLR laid down the principles applicable in an application for leave to file appeal out of time. It stated:
“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 the basis to the satisfaction of the court;
(c) Whether the court should exercise the discretion to extend time, is a consideration made on a case-to-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 prejudice suffered by the respondent if the extension is granted; and whether the application has been brought without undue delay.”
30. Guided by the foregoing, I have considered the application herein. The reason given by the applicant for delay in filing the appeal is that there was delay in obtaining the typed proceedings and judgment of the lower court. It is notable that the judgment was delivered on 3 rd October, 2025. The current advocate was instructed in November, 2025. The proceedings were received by the current advocate on 18 th February, 2026. It took two months to file this application.
31. From the foregoing, the explanation by the applicant is not sufficient because nothing to show that the applicant pursued the typed proceedings with the lower court save for one letter which was written to the registry. Though the applicant alludes to persistent visit to the registry, there is nothing to demonstrate that.
32. As much as a party should not be locked from the doors of justice, the delay by the applicant has not been sufficiently explained to the satisfaction of the court. The applicant has not disclosed her former advocates and the efforts made to pursue the proceedings. In any case, it a matter of judicial notice that all judgments and rulings are published in the case tracking system and the explanation that the applicant was pursuing certified copy of judgment is a red herring. It is my view that if the applicant was vigilant, she should have obtained copy od judgement to enable her to at least file memorandum of appeal as the same does require proceedings to be filed.
33. Further to the foregoing, I have noted that even after the applicant allegedly obtained the proceedings and judgment, has deliberately or otherwise failed to exhibit the proceedings and judgment of the lower court which would have enabled the court to consider whether the appeal raises arguable issues. All the applicant has exhibited is the memorandum of appeal which contains general grounds. In the circumstances the court cannot ascertain whether the appeal is arguable.
34. It is also hard to ascertain the prejudice the applicant shall suffer in the absence of the judgment of the lower court which would have been critical in informing this court the nature of prejudice if any the applicant would suffer. To the contrary, the respondent being a successful litigant should not be kept away from the fruits of the judgment obtained. The respondent will be prejudiced if the application is granted.
35. For the foregoing I find the applicant has not satisfied the court that it should exercise its discretion in her favour and the application herein is dismissed with costs.
Dated, signed and delivered at Kiambu this 27th day of July, 2026
Francis N. Kyambia
Judge
2
2. The application is supported by the grounds on the face of it and the supporting affidavit of the applicant. The contention of the applicant is that she was dissatisfied by the judgment of the trial court and seeks the leave of the court to appeal out of time.
3. The applicant attributes the delay to factors beyond her control being the delay by the lower court to supply typed proceedings and certified copy of judgment. A letter dated 5 th December, 2025 has been exhibited requesting the proceedings and judgment. The applicant aver that it was not until 18 th February, 2026 when the proceedings and judgement were supplied.
4. The applicant has annexed a memorandum of appeal in the affidavit in support of the motion setting out the grounds of the appeal. It is the contention of the applicant that if the orders sought are not granted she suffer irreparable loss and damage. In any case the respondent will not suffer any prejudice if the orders are issued as she has arguable appeal with chances of success.
5. The respondent filed grounds of opposition dated 14 th May, 2026 contending that the applicant has not satisfied the mandatory threshold set out in Section 75G of the Civil Procedure Act.
6. The respondent contends that the delay of five (5) months to file the appeal has not been satisfactorily and sufficiently explained. The allegation that the delay was occasioned by delay in supply of the typed proceedings and certified copy of the judgment is misleading, untenable and legally insufficient.
7. It is the contention of the respondent under Section 79G of the Civil Procedure Act, an appeal is from the subordinate court is instituted by filing of the memorandum of appeal and not by first obtaining typed proceedings as certified copies of the proceedings and judgment are not mandatory prerequisite for filing a memorandum of appeal.
8. The respondent contends that the delay taken from 3 rd October, 2025 and 5 th December, 2025 when the request for the typed proceedings was made was not explained.
9. It is further the contention of the respondent that the applicant has not demonstrated that she applied for the decree as required under Order 42 Rule 2 of the Civil Procedure Rules. In any case it is the contention of the respondent that the alleged letter requesting the proceedings was done out of the statutory period of 30 days within which the applicant was required to file the appeal.
10. Further to the foregoing the respondent contend that the present advocates were instructed in November, 2025 yet no explanation has been offered why despite receiving the typed proceedings on 18 th February, 2026 the application herein was filed five (5) months after the advocates on record received instructions to pursue an appeal against the judgment of the trial court.
11. Further the respondent contend that the applicant has failed to exhibit the decree or order appealed against or certificate of delay issued by the lower court or proof of payment of the proceedings or correspondence evidencing consistent follow-up with the registry.
12. The respondent contend that the applicant has not demonstrated sufficient cause to warrant the exercise of the court discretion in her favour considering that the enlargement of time under Section 79G of the Civil Procedure Act is equitable in nature and cannot be exercised in favour of an indolent litigant like the applicant.
13. Further the respondent aver that the applicant has failed to demonstrate that the intended appeal is arguable or raises any bona fide issues deserving the intervention of this court. It is asserted that the annexed memorandum of appeal merely raises generalized complainants against the judgment of the trial court without identifying any specific error of law or fact committed by the trial court.
14. Finally, the respondent aver that the applicant has not demonstrated the prejudice she will suffer if the application is declined. To the contrary, the respondent stands to suffer substantial prejudice for continued denial to enjoy the fruits of the judgment if the orders are granted.
15. The application was heard by way of written submissions.
16. The applicant in her submissions contend that she has demonstrated sufficient cause to warrant the grant of the orders sought. Article 159(2)(d) of the Constitution is cited which encourage courts to administer justice without undue regard to technicalities.
17. The applicant further submits that under Section 79G and 95 of the Civil Procedure Act, the court has discretion to enlarge time. The applicant cited the cases of Edith Gichungu vs Stephen Njagi Thoithi (2014) e KLR on the factors to be considered by the court in an application for extension of time. The case of Kamlesh Mansukhalal Damki Patni vs Director of Public Prosecution is cited to support the assertion that the court exists to do justice to the parties and the doors of justice should not be closed to any party hence the applicant should be granted leave to ventilate her appeal in this court.
18. It further argued that the appeal is arguable with high chances of success and that applicant should be accorded her right to have her grievances against the trial court heard. Reliance is placed on the cases of Charles Karanja Kuru vs Charles Githinji Muigwa (2016) e KLR and Gerald M’Limbine vs Joseph Kangangi (2009) e KLR.
19. The respondent on the other hand submitted that the discretion under Section 79G of the Civil Procedure Act is judicial rather than automatic. It is the burden of the applicant to demonstrate to the court sufficient cause to warrant the exercise of the same in his/her favour. The applicant cited the case of First American Bank of Kenya vs Gulab P. Shah & 2 others (2002) E.A 65 cited with approval in the case of Dilpack Kenya Limited vs William Muthama Kitonyi (2018) KEHC 4858 (KLR) on the what the court has to consider in an application for enlargement of time to wit, the length of delay, the reasons for delay, the chances of success of the intended appeal and the degree of prejudice to the respondent.
20. The respondent submitted that the delay by the applicant was not explained sufficiently to warrant the exercise of this court’s discretion.
21. The respondent further submitted that under Order 42 Rule 1 of the Civil Procedure Rules requires mere filing of the memorandum of appeal and thereafter the decree may be filed with the leave of the court pursuant to Order 42 Rule 2 of the Civil Procedure Rules, hence no explanation has been given why the memorandum of appeal was not filed promptly. The respondent relied on the case of Peter Gichuhi vs Joseph (2020) e KLR.
22. On the delay in obtaining proceedings the respondent relied on the case of Molyn Credit Limited vs Nderitu & Another (2022) KEHC 13001 (KLR) where an application for leave to extent time to file appeal was dismissed where similar grounds of delay were proffered by the applicant.
23. The respondent further submitted that the applicant has not demonstrated that the intended appeal is arguable so as to be entitled to the prayer sought. The respondent argue that the memorandum of appeal contains generalized grounds without specificities on the substantial questions deserving intervention of the court.
24. On whether the respondent will suffer prejudice it is argued that the respondent has been kept out the fruits of the judgment since the judgment was delivered.
25. I have considered the application herein, the reply to the same and the submissions by both sides. The issue for determination in this application is whether the court should exercise its discretion and grant the applicant leave to file appeal out of time
26. Section 79G of the Civil Procedure Act under which the application is premised provides:
“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 may certify as having been requisite for the preparation and delivery to the appellant of 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.”
27. Flowing from the foregoing, it is clear that the court has discretion to grant leave to an appellant to file appeal out of time so long the applicant must demonstrate good and sufficient cause why the appeal was not filed within the prescribed period.
28. The courts have pronounced on what should be considered in an application for leave to file appeal out time. In the case of Edith Gichungu Koine vs Stephen Njagi Thoithi (2014) cited by the respondent the Court of Appeal rendered itself thus:
“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but not limited to, the period of delay, the reasons for delay, the degree of prejudice to the respondent if the application is granted and whether the matter rises issues of public importance, amongst others.”
29. Further the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC & 7 Others (2014) e KLR laid down the principles applicable in an application for leave to file appeal out of time. It stated:
“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 the basis to the satisfaction of the court;
(c) Whether the court should exercise the discretion to extend time, is a consideration made on a case-to-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 prejudice suffered by the respondent if the extension is granted; and whether the application has been brought without undue delay.”
30. Guided by the foregoing, I have considered the application herein. The reason given by the applicant for delay in filing the appeal is that there was delay in obtaining the typed proceedings and judgment of the lower court. It is notable that the judgment was delivered on 3 rd October, 2025. The current advocate was instructed in November, 2025. The proceedings were received by the current advocate on 18 th February, 2026. It took two months to file this application.
31. From the foregoing, the explanation by the applicant is not sufficient because nothing to show that the applicant pursued the typed proceedings with the lower court save for one letter which was written to the registry. Though the applicant alludes to persistent visit to the registry, there is nothing to demonstrate that.
32. As much as a party should not be locked from the doors of justice, the delay by the applicant has not been sufficiently explained to the satisfaction of the court. The applicant has not disclosed her former advocates and the efforts made to pursue the proceedings. In any case, it a matter of judicial notice that all judgments and rulings are published in the case tracking system and the explanation that the applicant was pursuing certified copy of judgment is a red herring. It is my view that if the applicant was vigilant, she should have obtained copy od judgement to enable her to at least file memorandum of appeal as the same does require proceedings to be filed.
33. Further to the foregoing, I have noted that even after the applicant allegedly obtained the proceedings and judgment, has deliberately or otherwise failed to exhibit the proceedings and judgment of the lower court which would have enabled the court to consider whether the appeal raises arguable issues. All the applicant has exhibited is the memorandum of appeal which contains general grounds. In the circumstances the court cannot ascertain whether the appeal is arguable.
34. It is also hard to ascertain the prejudice the applicant shall suffer in the absence of the judgment of the lower court which would have been critical in informing this court the nature of prejudice if any the applicant would suffer. To the contrary, the respondent being a successful litigant should not be kept away from the fruits of the judgment obtained. The respondent will be prejudiced if the application is granted.
35. For the foregoing I find the applicant has not satisfied the court that it should exercise its discretion in her favour and the application herein is dismissed with costs.
Dated, signed and delivered at Kiambu this 27th day of July, 2026
Francis N. Kyambia
Judge
2