RULING
(On whether the applicant should be granted leave to appeal out of time)
The application
1. The applicant filed a Notice of Motion dated 18th June 2025, brought under certificate of urgency. The application is brought under Order 42, Order 51 Rule 1 of Civil Procedure Rules, 2010 and Section 14, IB, 79G and 75 of the Civil Procedure Act as well as what the applicant refers to as ‘‘all other enabling provisions of the law’’.
2. The applicant seeks orders that:
1. …Spent
2. This honourable court be pleased to grant leave to the applicant to file an appeal out of time against the ruling of Hon. Naomi Wairimu PM delivered on 5th December 2025.
3. The cost of the application be provided for.
3. The application was premised on the grounds set out on the face of the application as well as the supporting affidavit deponed on even date by the George Nyamwaya, the applicant herein. The grounds are that the trial court, on 9th April 2024 delivered a judgment in Migori Magistrate’s court case no. ELC 26 A of 2024. The effect of the said judgment was a dismissal of the suit. The applicant states that he filed an application at the trial court seeking the reopening of the case as well as being enjoined in the reopened case. The trial court delivered a ruling on 5th December 2024, dismissing the said application. It is this ruling that the applicant now wishes to appeal against.
4. The applicant maintained that that the time for appealing had since expired. But he also contended that the application was brought timeously and without unreasonable delay and in good faith. He stated that the interests of justice would favour the grant of the orders sought.
5. In addition to the grounds, the applicant in his supporting affidavit added depositions that the reason for the delay in filing the appeal was occasioned by the fact of filing an application filed erroneously at the Environment and Land Court seeking leave. He deponed that the said application ought to have been filed at the trial court. He annexed the front page of the said application in annexure marked GN-5.
6. The applicant also stated that the ruling which he now wishes to appeal against was rendered in the absence of the applicant and his counsel. Other than the aforesaid annexure, the applicant annexed the following annexures: a copy of the trial court’s judgment dated 9th April 2024, the application seeking the reopening of the case in Migori Magistrate’s court no ELC case no. 26A of 2024, the trial court’s ruling dated 5th December 2024, a draft memorandum of appeal.
The Response
7. The Respondents filed a replying affidavit dated 14th July 2025 and deponed by David Obara, the 1st respondent herein. He deponed that the applicant’s application dated 27th June 2025 is defective and an abuse of the court process since the applicant was not a party to the judgment they intend to appeal against and that he had not been granted leave to be joined so as to acquire locus to appeal. He also deponed that the instant application is merely intended to held the judgment debtor, who already lost the suit, relitigate the same.
8. The 1st respondent also deponed that that the applicant sought to appeal against a ruling that was rendered on 5th December 2024, which period was way beyond the time mandated period for instituting appeals. He added that no reasonable explanation had been given for the said delay and that the intended appeal does not have any chance of success hence rendering the instant appeal an abuse of the court process. The 1st respondent reiterated that the application is merely an avenue intended to held the judgment debtor reventilate issues that have already been litigated.
9. The 1st respondent deponed that the respondents have the right to enjoy the fruits of their judgment and prayed that the application be dismissed.
Submissions
10. The application was canvassed through written submissions. The respondents did not file their submissions. The applicant filed his submissions dated 4th December 2025.he identified one issued for determination, that is, whether the application for leave is merited. He reiterated that he reasons for failing to appeal the impugned ruling within time was occasioned by the fact his filing an application, which he states to have been filed erroneously before this court, which was later withdrawn hence paving way for the instant application. He also stated that the ruling in question was rendered in his absence as well as in the absence of his counsel. He relied on the case of Adana v Ogora [2025] KEHC 1462 KLR to highlight the factors that his court ought to consider when dealing with an application seeking leave to appeal out of time.
11. The applicant submitted that he has a right to be heard, especially in circumstances where decisions are made in the absence of a party or his counsel. He stated that he stands to suffer prejudice should the orders he seeks not be granted since he stands to lose the very land that he utilizes for his livelihood. The applicant also submitted that the time lapse is not inordinate that there were applications made in the same suit which were later withdrawn.
12. In conclusion, the applicant maintained that he had demonstrated sufficient cause to persuade this court to apply its discretion to allow the instant application.
Issues, analysis and determination
13. The issues that arise for determination in the instant application is whether the application is merited and, who should bear the costs of the application.
14. Section 79(G) of the Civil procedure Act provides that appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree. It provides that,
“ 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 filling the appeal in time.
15. Much has been stated by courts when considering applications made under the said provision. Thus, in Adana v Ogora (Civil Appeal E006 of 2021) [2025] KEHC 1462 (KLR) (12 February 2025) (Ruling), the court held that:
‘‘In considering the issue of timely filing of the appeal which is germane to this case, this court is guided that discretion to extend time is unfettered. There is no limit to the number of factors the Court would consider so long as they are relevant. These factors include but are not limited to the period of delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, or whether the matter raises issues of public importance. All are relevant but not exhaustive factors.’’
16. Also, in Edith Gichungu Koine v Stephen Njagi Thoiti [2014] eKLR, the Court of Appeal reasoned that:
‘‘8. I have anxiously considered the application, the affidavits on record and the submissions of counsel. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. 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 the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst
17. Additionally, in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR (supra), the Supreme Court Concurred that:
“It follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the courts should consider “all the circumstances of the case” including:
a) the interests of the administration of justice;
b) whether the application for relief has been made promptly;
c) whether the failure to comply was intentional;
d) whether there is a good explanation for the failure;
e) the extent to which the party in default has complied with other rules, practice directions and court orders;
f) whether the failure to comply was caused by the party or his legal representative;
g) the effect which the failure to comply had on each party; and
h) the effect which the granting of relief would have on each party.
18. I too have anxiously considered the instant application, the replying affidavit filed by the respondents, the submissions filed by the applicant as well as the relevant law on the subject. The applicant intends to appeal against the ruling of the trial court rendered on 5th December 2024. As acknowledged by all the parties, the time this court has been moved for filing an appeal against the ruling is way beyond the 30-day period mandated by the law for an appeal. To be clear, the application was made 195 days after the delivery of the impugned ruling.
19. Having so established, I now proceed to analyze the reasons advanced for filing the application out of time. That will enable me to determine whether it would be meritorious to exercise the discretion of this court and allowing the application. The applicant provided two reasons for the delay. He stated that he erroneously filed an application in this court, which he later withdrew hence he could not file the application in good time. He also stated that neither himself nor his counsel were present in court when the impugned ruling was rendered.
20. I understand the applicant to be saying that he was not aware of the ruling because it was made in his absence. Granted that the applicant wished to state the truth, his actions demonstrate otherwise. The record shows that he filed, within only fourteen days of the delivery of the ruling, that is by the 19th December 2024, the application he later withdrew. That is not a period longer than the 30 days he would have filed the appeal. He knew of the ruling in time but went on to take other steps than the filing of the appeal. For this reason, I am not convinced that both the applicant and his counsel were not aware of the impugned ruling.
21. Thus, whereas the applicant feigns ignorance of the ruling, my finding is that he filed an application before this court and the basis of this was application is the very ruling whose existence the applicant did not have. Accordingly, I find that the applicant was aware of the ruling in question. If was serious about the appeal he now wishes to institute, he would have appealed within the time frame when he made the application dated 19th December 2024, which was well within the time for instituting appeals.
22. Related to the above point is the issue of the application which was said to be withdrawn, I note that the applicant, for reasons only known to himself, conveniently annexed the front page of the said application, which section of the page only shows the parties to the application and nothing more. As to the content of the application only he knows them. He must have had something to hide from the court by intentionally avoiding to annex the entire application for the court to peruse it and appreciate its correlation with the instant application.
23. Also, even if the applicant made an application in error and later withdrew the same, is this reason enough to allow an appeal to be instituted 195 days after a ruling was made? I do not think so. A party should be in charge of his case and has the obligation of determining the appropriate forum for his case. in any event, I do not see the correlation between the application that was withdrawn and the instant application.
24. A party to any dispute has the right to enjoy the fruits of his litigation. An application made 195 days after the date of a ruling and without proper justification is only meant to derail the course of justice. Its fate is dismissal. Accordingly, I find and hold that the instant application is not meritorious and is hereby dismissed.
25. On the issue of costs of the application, the applicant having unnecessarily dragged the respondents to court to prosecute the instant application, shall bear the costs of the application.
26. It is so ordered.
Ruling dated signed and delivered virtually via the Teams Platform this 21st day of May 2026.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. Ochieng Advocate for Mr. Odindo for the Applicant
Ms. Ogutu for Mboya for the 1st to 5th Respondents