1. By a Notice of Motion dated 6th March 2025, and filed through the firm of OCHOKI & Company Advocates, the Applicants herein sought the following orders THAT: -
1. Spent
2. This honourable court be pleased to grant the Applicant leave to appeal out of time against the ruling delivered by Hon. B.O Omwansa (SPM) delivered on the 23rd day of July 2024 in succession No. 690 of 2021.
3. This honourable court be pleased to extend the time within which the Applicant may lodge the Memorandum of Appeal.
4. This honourable court be pleased to deem the annexed Draft Memorandum of Appeal as duly filed upon payment of the requisite court fees.
5. The cost of the application be in the cause.
2. The grounds on the face of the application were that;
a) The Ruling subject to the intended appeal that was delivered on 23rd July 2024 and the statutory time for lodging an appeal has since lapsed.
b) The applicant had duly instructed her previous Advocate to file an Appeal against the ruling but instead, the Advocate erroneously filed an application for review.
c) The Applicant inadvently signed the supporting affidavit for the application for review believing it aligned with her instructions.
d) The Applicant later realized that a review was not the appropriate remedy and now wishes to pursue an appeal.
e) The said application was subsequently dismissed vide a ruling delivered on 31st January 2025.
f) The Applicant only became aware of the advocates mistakes after the review was dismissed by which the period for filing an appeal had already lapsed.
g) That the failure to file an appeal within the prescribed time was occasioned by by the confusion arising from the review process and was not intended to delay justice.
h) The mistake of the Applicants former Advocate should not be visited upon the applicant who was keen on pursuing an appeal within time.
i) The intended appeal raises substantial and arguable grounds with high chances of success as demonstrated in the Draft Memorandum of Appeal annexed hereto.
j) Immediately upon discovering the mistake, the applicant took urgent steps to engage the current legal representation and filed this application without undue delay.
k) The delay was therefore not deliberate or intended to frustrate the process of justice.
l) The intended appeal raises serious legal and factual issues regarding the unequal distribution of the deceased estate between the Applicant and the Respondent contrary to section 40 of the Law of Succession Act.
m) The Respondent will not suffer any prejudice if this application is allowed.
n) It is in the interest of justice that this application be granted to allow for a fair hearing of the appeal.
DETERMINATION
3. I have considered the Application herein;
Section 79G of the Civil Procedure Act provides as follows: -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.
4. Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously.
5. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time:
a. Extension of time is not a right of a 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 discretion to extend time, is a consideration to be 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 any prejudice suffered by the respondents if the extension is granted;
f. Whether the application has been brought without undue delay; and
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
6. In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: -
“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now 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.”These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway.
Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:
“…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting application….”
7. This was the holding in the cases of Charles Karanja Kiiru v Charles Githinji Muigwa [2017] eKLR; Omar Shurie v Marian Rashe Yafar [2020] eKLR; Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where the Court of Appeal pronounced itself as such.
8. This court is therefore tasked with determining whether the present application meets the requirements set out hereinabove.
Length of Delay
9. The Ruling in question was delivered on 23rd July 2024. In 9th August 2024 the Applicant sought to set aside the ruling through the chamber summons and a ruling was delivered on 31st January 2025. 30 days therefore lapsed on or before 7th August 2024 in the Ruling in question. The present application was filed on 6th March 2025- that is, around 6 months after the fact.
REASON FOR DELAY
10. The Deponent deponed that she had duly instructed her previous Advocate to file an Appeal against the ruling but instead, the Advocate erroneously filed an application for review and that she inadvertently signed the supporting affidavit for the application for review believing it aligned with her instructions and later realized that a review was not the appropriate remedy and that she only became aware of the advocates mistakes after the review was dismissed by which the period for filing an appeal had already lapsed. She further stated that the failure to file an appeal within the prescribed time was occasioned by the confusion arising from the review process and was not intended to delay justice.
11. The respondents opposed the application vide the replying affidavit of BEATRICE NYANCHAMA ARUSA, who termed the application as superfluous, and the excuse given by the applicant for failure to file an appeal on time cannot be sustained by any court of law and such excuse is irregular and unlawful.
12. On leave to appeal out of time, it is clear that the applicant delayed to file the intended appeal by 6 months as the Ruling was delivered on 23rd July 2024 and the application was filed on 6th March 2025. The applicant says that the delay was caused by the advocate who was in conduct of the matter who did not file an Appeal according to the wishes of his client and filed an application for review. However, the said advocate has not been named. In Rajesh Rughani v Fifty Investments Limited & another [2016] eKLR it was held follows; “In Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR this court stated that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation.”
The applicant seems to be economical with the truth in this matter. In the sense that the Ruling of the Review was delivered on 31st January 2025 and surprisingly the appellant comes to seek leave after 34 days. Though the draft memorandum of appeal raises an arguable issue, there is no ground established as to why the appeal was not filed within time. It is trite law that justice delayed is justice denied, and a decree holder is entitled to enjoy the fruits of her judgment. I agree with the respondent that the intended appeal is an afterthought meant to delay the execution of the judgment.
13. Since the prayer for leave out of time has failed, then I need not delve into the issue of stay of execution. The application is devoid of merit, and I proceed to dismiss it with costs to the respondents.
T.A ODERA
JUDGE
13.6.25
DELIVERED VIRTUALLY ON THIS 13TH DAY OF JUNE 2025 IN THE PRESENCE OF
Miss Ndemo for the applicant
N/A respondent
1. Spent
2. This honourable court be pleased to grant the Applicant leave to appeal out of time against the ruling delivered by Hon. B.O Omwansa (SPM) delivered on the 23rd day of July 2024 in succession No. 690 of 2021.
3. This honourable court be pleased to extend the time within which the Applicant may lodge the Memorandum of Appeal.
4. This honourable court be pleased to deem the annexed Draft Memorandum of Appeal as duly filed upon payment of the requisite court fees.
5. The cost of the application be in the cause.
2. The grounds on the face of the application were that;
a) The Ruling subject to the intended appeal that was delivered on 23rd July 2024 and the statutory time for lodging an appeal has since lapsed.
b) The applicant had duly instructed her previous Advocate to file an Appeal against the ruling but instead, the Advocate erroneously filed an application for review.
c) The Applicant inadvently signed the supporting affidavit for the application for review believing it aligned with her instructions.
d) The Applicant later realized that a review was not the appropriate remedy and now wishes to pursue an appeal.
e) The said application was subsequently dismissed vide a ruling delivered on 31st January 2025.
f) The Applicant only became aware of the advocates mistakes after the review was dismissed by which the period for filing an appeal had already lapsed.
g) That the failure to file an appeal within the prescribed time was occasioned by by the confusion arising from the review process and was not intended to delay justice.
h) The mistake of the Applicants former Advocate should not be visited upon the applicant who was keen on pursuing an appeal within time.
i) The intended appeal raises substantial and arguable grounds with high chances of success as demonstrated in the Draft Memorandum of Appeal annexed hereto.
j) Immediately upon discovering the mistake, the applicant took urgent steps to engage the current legal representation and filed this application without undue delay.
k) The delay was therefore not deliberate or intended to frustrate the process of justice.
l) The intended appeal raises serious legal and factual issues regarding the unequal distribution of the deceased estate between the Applicant and the Respondent contrary to section 40 of the Law of Succession Act.
m) The Respondent will not suffer any prejudice if this application is allowed.
n) It is in the interest of justice that this application be granted to allow for a fair hearing of the appeal.
DETERMINATION
3. I have considered the Application herein;
Section 79G of the Civil Procedure Act provides as follows: -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.
4. Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously.
5. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time:
a. Extension of time is not a right of a 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 discretion to extend time, is a consideration to be 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 any prejudice suffered by the respondents if the extension is granted;
f. Whether the application has been brought without undue delay; and
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
6. In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: -
“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now 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.”These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway.
Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A:
“…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting application….”
7. This was the holding in the cases of Charles Karanja Kiiru v Charles Githinji Muigwa [2017] eKLR; Omar Shurie v Marian Rashe Yafar [2020] eKLR; Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR where the Court of Appeal pronounced itself as such.
8. This court is therefore tasked with determining whether the present application meets the requirements set out hereinabove.
Length of Delay
9. The Ruling in question was delivered on 23rd July 2024. In 9th August 2024 the Applicant sought to set aside the ruling through the chamber summons and a ruling was delivered on 31st January 2025. 30 days therefore lapsed on or before 7th August 2024 in the Ruling in question. The present application was filed on 6th March 2025- that is, around 6 months after the fact.
REASON FOR DELAY
10. The Deponent deponed that she had duly instructed her previous Advocate to file an Appeal against the ruling but instead, the Advocate erroneously filed an application for review and that she inadvertently signed the supporting affidavit for the application for review believing it aligned with her instructions and later realized that a review was not the appropriate remedy and that she only became aware of the advocates mistakes after the review was dismissed by which the period for filing an appeal had already lapsed. She further stated that the failure to file an appeal within the prescribed time was occasioned by the confusion arising from the review process and was not intended to delay justice.
11. The respondents opposed the application vide the replying affidavit of BEATRICE NYANCHAMA ARUSA, who termed the application as superfluous, and the excuse given by the applicant for failure to file an appeal on time cannot be sustained by any court of law and such excuse is irregular and unlawful.
12. On leave to appeal out of time, it is clear that the applicant delayed to file the intended appeal by 6 months as the Ruling was delivered on 23rd July 2024 and the application was filed on 6th March 2025. The applicant says that the delay was caused by the advocate who was in conduct of the matter who did not file an Appeal according to the wishes of his client and filed an application for review. However, the said advocate has not been named. In Rajesh Rughani v Fifty Investments Limited & another [2016] eKLR it was held follows; “In Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR this court stated that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation.”
The applicant seems to be economical with the truth in this matter. In the sense that the Ruling of the Review was delivered on 31st January 2025 and surprisingly the appellant comes to seek leave after 34 days. Though the draft memorandum of appeal raises an arguable issue, there is no ground established as to why the appeal was not filed within time. It is trite law that justice delayed is justice denied, and a decree holder is entitled to enjoy the fruits of her judgment. I agree with the respondent that the intended appeal is an afterthought meant to delay the execution of the judgment.
13. Since the prayer for leave out of time has failed, then I need not delve into the issue of stay of execution. The application is devoid of merit, and I proceed to dismiss it with costs to the respondents.
T.A ODERA
JUDGE
13.6.25
DELIVERED VIRTUALLY ON THIS 13TH DAY OF JUNE 2025 IN THE PRESENCE OF
Miss Ndemo for the applicant
N/A respondent