[1] Before the Court for determination is the Notice of Motion dated 3 rd December 2025. It was filed by the appellants under Articles 48, 50 and 159(2) of the Constitution of Kenya, Sections 1, 1A, 3, 3A, 64(e), 66, 79A and 79G of the Civil Procedure Act, Cap 21 of the Laws of Kenya, and Order 50 Rule 5 and 51 Rule 1 of the Civil Procedure Rules, 2010. The appellants thereby prayed for orders, inter alia , that:
[a] The Court be pleased to enlarge time for appeal from the judgment and decree of Ndhiwa Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025.
[b] Upon grant of prayer [a] above, this appeal be deemed as having been filed within time.
[c] There be stay of execution of the judgment and decree of the Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025, pending the hearing and determination of this appeal.
[d] The costs of the application be provided for.
[2] The application was premised on the grounds that this appeal was filed on 28 th November 2025, some 6 calendar days out of time; and that it raises many serious and significant issues for consideration by this Court. The appellants further averred that the delay in filing the appeal is not inordinate and has been explained satisfactorily.
[3] The application was supported by the affidavit of the 1 st applicant’s Human Resource Manager, Mr. Collins A. Aluku , sworn on 3 rd December 2025. The respondent averred that the 2 nd appellant is its employee; and that on the 22 nd October 2025, the subordinate court at Ndhiwa entered judgment for the 1 st respondent against them for Kshs. 2,319,300/= and Kshs. 5,411,700/=, respectively, together with costs of that suit and interest on the basis of 30:70% liability against the appellant.
[4] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide their Memorandum of Appeal dated 27 th November 2025 as amended on 2 nd December 2025. The appellants further averred that, since they were insured by M/s Kenindia Assurance Company Limited against perils of the kind that gave rise to the lower court suit, ultimately, it will be their insurer’s duty to satisfy the decree of the subordinate court upon conclusion of the appeal, in the event of dismissal of the appeal.
[5] At paragraph 9 of their Replying Affidavit, the appellants averred that, after delivery of the judgment in Ndhiwa MCCC No. E018 of 2023 on 22 nd October 2025, their advocates notified their insurer of the outcome. Upon reviewing the judgment, the management of the 1 st appellant and their insurer took a decision to appeal the same; by which time the 30-day appeal window had lapsed by 6 days. They averred that although the appeal has been filed, it was filed out of time, hence their application for leave to have it admitted out of time.
[6] In respect of their prayer for stay of execution, the appellants averred that execution proceedings to realize the fruits of the decree appealed from are imminent; and that the 1 st respondent’s means and material possessions are unknown to them. Hence, they deposed that they stand to suffer substantial loss in the nature and to the extent of the principal award and the costs of execution proceedings in the event of a successful appeal. They indicated their readiness to provide such security for the satisfaction of the decree as this Court may order.
[7] The appellants therefore averred that there is sufficient cause for orders validating this appeal and staying execution of the subject decree. They added that it would be wasteful and unwise use of precious judicial time, processes and resources to wait until after determination of the appeal to take out proceedings for recovery of the decretal sum if they succeed on appeal.
[8] Counsel for the respondents indicated to the Court on 17 th March 2026 that the respondents had no objection to the appellants’ prayer for stay of execution. By that time, directions had been given for the canvassing of the application by way of written submissions and the parties had filed their respective submissions. Accordingly, the Court was called upon to determine the single issue of whether, in the circumstances, sufficient cause had been shown for it to exercise its discretion in favour of the appellants by admitting the appeal out of time.
[9] A perusal of the court record shows that the submissions filed on behalf of the 1 st respondent have nothing to do with the application dated 3 rd December 2025. They are in respect of the substantive appeal. None of the other parties filed submissions. In the premises the Court will limit its consideration to the application and its Supporting Affidavit, noting that no response was filed thereto by the respondents.
[10] Section 79G of the Civil Procedure Act, which stipulates that:
"Every appeal from a subordinate court to the High Court shall be filed within a period of 30 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 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."
[11] Accordingly, it is permissible for an appeal to be filed out of time, as has been done herein before an application for leave is canvassed and determined by the Court. This position was well explicated by Hon. Emukule, J. in Gerald M’limbine vs. Joseph Kangangi [2008] eKLR, thus:
My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:
“79B Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily”
It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”
[12] The same line of thought was expressed in Ndungu Muhindi James & Another v Cecilia Wanjiku Waweru [2020] eKLR, wherein Hon. Kasango, J. held as follows after reviewing relevant authorities on the construction of the proviso to Section 79G :
“It follows that the prayers for an appeal to be filed out of time and stay pending the determination of that yet to be filed appeal will fail in view of the jurisprudence pronounced in the above case James Njau Githui (supra)…”
[13] This is not to say that parties approaching the courts by way of miscellaneous applications for extension of time to appeal have been denied their prayers. Such applications have routinely been considered and granted depending on their respective merits.
[14] Accordingly, the only issue for consideration is whether sufficient cause has been shown by the appellants to warrant the admission of their appeal out of time. The applicable principles were restated by the Supreme Court in Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others [2014] eKLR as follows:
“…(T)he underlying principles a court should consider in exercise of such discretion include:
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5. whether there will be any prejudice suffered by the Respondent if the extension is granted;
6. Whether the application has been brought without undue delay.
7. .......”
[15] For purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for admission of the appeal out of time under the following parameters:
[a] whether there is a good and reasonable explanation for the delay;
[b] whether the application has been brought without undue delay;
[c] whether the appeal is arguable, and
[c] whether any prejudice will be suffered by respondent.
[16] In respect of the first prerequisite, the single reason given at paragraphs 9, 10 and 11 of the Supporting Affidavit is that in the course of consultation between the management of the 1 st applicant and their insurers for purposes of ascertaining whether or not an appeal was a viable option, the appeal window lapsed by 6 days. The explanation is plausible. It is also manifest that the application was brought without undue delay, granted that it was filed contemporaneously with the Amended Memorandum of Appeal. Additionally, no prejudice will be suffered by the respondents who have already filed their submissions herein.
[17] I have also looked at the Amended Memorandum of Appeal and noted that it raises valid triable issues worth considering on appeal. It has often been stated that a triable issue is not necessarily one that must succeed. Indeed, in Banco Arabe v Bank of Uganda [1999] 1 EA 22, that:
"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered."
[18] In the result, I find merit in the application dated 3 rd December 2025. The same is hereby allowed and orders granted as follows:
[a] That this appeal from the judgment and decree of Ndhiwa Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025 be and is hereby deemed as having been filed within time.
[b] That stay of execution of the judgment and decree of the Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025, be and is hereby granted pending the hearing and determination of this appeal on condition that half of the decretal sum be deposited in a joint interest earning account in the names of counsel for the parties within 45 days from today.
[c] The costs of the application be borne by the appellants.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26 TH DAY OF JUNE 2026
[a] The Court be pleased to enlarge time for appeal from the judgment and decree of Ndhiwa Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025.
[b] Upon grant of prayer [a] above, this appeal be deemed as having been filed within time.
[c] There be stay of execution of the judgment and decree of the Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025, pending the hearing and determination of this appeal.
[d] The costs of the application be provided for.
[2] The application was premised on the grounds that this appeal was filed on 28 th November 2025, some 6 calendar days out of time; and that it raises many serious and significant issues for consideration by this Court. The appellants further averred that the delay in filing the appeal is not inordinate and has been explained satisfactorily.
[3] The application was supported by the affidavit of the 1 st applicant’s Human Resource Manager, Mr. Collins A. Aluku , sworn on 3 rd December 2025. The respondent averred that the 2 nd appellant is its employee; and that on the 22 nd October 2025, the subordinate court at Ndhiwa entered judgment for the 1 st respondent against them for Kshs. 2,319,300/= and Kshs. 5,411,700/=, respectively, together with costs of that suit and interest on the basis of 30:70% liability against the appellant.
[4] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide their Memorandum of Appeal dated 27 th November 2025 as amended on 2 nd December 2025. The appellants further averred that, since they were insured by M/s Kenindia Assurance Company Limited against perils of the kind that gave rise to the lower court suit, ultimately, it will be their insurer’s duty to satisfy the decree of the subordinate court upon conclusion of the appeal, in the event of dismissal of the appeal.
[5] At paragraph 9 of their Replying Affidavit, the appellants averred that, after delivery of the judgment in Ndhiwa MCCC No. E018 of 2023 on 22 nd October 2025, their advocates notified their insurer of the outcome. Upon reviewing the judgment, the management of the 1 st appellant and their insurer took a decision to appeal the same; by which time the 30-day appeal window had lapsed by 6 days. They averred that although the appeal has been filed, it was filed out of time, hence their application for leave to have it admitted out of time.
[6] In respect of their prayer for stay of execution, the appellants averred that execution proceedings to realize the fruits of the decree appealed from are imminent; and that the 1 st respondent’s means and material possessions are unknown to them. Hence, they deposed that they stand to suffer substantial loss in the nature and to the extent of the principal award and the costs of execution proceedings in the event of a successful appeal. They indicated their readiness to provide such security for the satisfaction of the decree as this Court may order.
[7] The appellants therefore averred that there is sufficient cause for orders validating this appeal and staying execution of the subject decree. They added that it would be wasteful and unwise use of precious judicial time, processes and resources to wait until after determination of the appeal to take out proceedings for recovery of the decretal sum if they succeed on appeal.
[8] Counsel for the respondents indicated to the Court on 17 th March 2026 that the respondents had no objection to the appellants’ prayer for stay of execution. By that time, directions had been given for the canvassing of the application by way of written submissions and the parties had filed their respective submissions. Accordingly, the Court was called upon to determine the single issue of whether, in the circumstances, sufficient cause had been shown for it to exercise its discretion in favour of the appellants by admitting the appeal out of time.
[9] A perusal of the court record shows that the submissions filed on behalf of the 1 st respondent have nothing to do with the application dated 3 rd December 2025. They are in respect of the substantive appeal. None of the other parties filed submissions. In the premises the Court will limit its consideration to the application and its Supporting Affidavit, noting that no response was filed thereto by the respondents.
[10] Section 79G of the Civil Procedure Act, which stipulates that:
"Every appeal from a subordinate court to the High Court shall be filed within a period of 30 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 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."
[11] Accordingly, it is permissible for an appeal to be filed out of time, as has been done herein before an application for leave is canvassed and determined by the Court. This position was well explicated by Hon. Emukule, J. in Gerald M’limbine vs. Joseph Kangangi [2008] eKLR, thus:
My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:
“79B Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily”
It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”
[12] The same line of thought was expressed in Ndungu Muhindi James & Another v Cecilia Wanjiku Waweru [2020] eKLR, wherein Hon. Kasango, J. held as follows after reviewing relevant authorities on the construction of the proviso to Section 79G :
“It follows that the prayers for an appeal to be filed out of time and stay pending the determination of that yet to be filed appeal will fail in view of the jurisprudence pronounced in the above case James Njau Githui (supra)…”
[13] This is not to say that parties approaching the courts by way of miscellaneous applications for extension of time to appeal have been denied their prayers. Such applications have routinely been considered and granted depending on their respective merits.
[14] Accordingly, the only issue for consideration is whether sufficient cause has been shown by the appellants to warrant the admission of their appeal out of time. The applicable principles were restated by the Supreme Court in Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others [2014] eKLR as follows:
“…(T)he underlying principles a court should consider in exercise of such discretion include:
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5. whether there will be any prejudice suffered by the Respondent if the extension is granted;
6. Whether the application has been brought without undue delay.
7. .......”
[15] For purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for admission of the appeal out of time under the following parameters:
[a] whether there is a good and reasonable explanation for the delay;
[b] whether the application has been brought without undue delay;
[c] whether the appeal is arguable, and
[c] whether any prejudice will be suffered by respondent.
[16] In respect of the first prerequisite, the single reason given at paragraphs 9, 10 and 11 of the Supporting Affidavit is that in the course of consultation between the management of the 1 st applicant and their insurers for purposes of ascertaining whether or not an appeal was a viable option, the appeal window lapsed by 6 days. The explanation is plausible. It is also manifest that the application was brought without undue delay, granted that it was filed contemporaneously with the Amended Memorandum of Appeal. Additionally, no prejudice will be suffered by the respondents who have already filed their submissions herein.
[17] I have also looked at the Amended Memorandum of Appeal and noted that it raises valid triable issues worth considering on appeal. It has often been stated that a triable issue is not necessarily one that must succeed. Indeed, in Banco Arabe v Bank of Uganda [1999] 1 EA 22, that:
"The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuance of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered."
[18] In the result, I find merit in the application dated 3 rd December 2025. The same is hereby allowed and orders granted as follows:
[a] That this appeal from the judgment and decree of Ndhiwa Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025 be and is hereby deemed as having been filed within time.
[b] That stay of execution of the judgment and decree of the Magistrate’s Court in Ndhiwa MCCC No. E018 of 2023: Purity Wanjiru Thuku (suing as the legal representative of the estate of Beth Njoki Thuku v Juvenalis Kenaly Orenge & 3 others dated and delivered on 22 nd October 2025, be and is hereby granted pending the hearing and determination of this appeal on condition that half of the decretal sum be deposited in a joint interest earning account in the names of counsel for the parties within 45 days from today.
[c] The costs of the application be borne by the appellants.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 26 TH DAY OF JUNE 2026