REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCCMISC CASE NO.E031 OF 2025
JACQUELINE MUENI MUTWII and EVANS MUSEMBI KIMATU
(Suing as the administrator and/or legal representative of the estate of NICHOLAS MUKOMA MUTWII (Deceased)..………............................………………… APPLICANT
-VERSUS-
JANE MONICA NYANGE……………………………….1 ST RESPONDENT
RAPHAEL LAVU NYENGE…………………………….. 2 ND RESPONDENT
RULING
1. There is a Motion before me dated 28/3/2025 brought under order 50 rule 6, order 51 rule 1 of the Civil Procedure Rule, section 79G and Section 3A of the Civil Procedure Act.
2. The applicant seeks an order to enlarge time, leave to appeal out time, and the Memorandum of appeal dated 28/3/2025 be deemed duly filed.
3. The application is supported by the grounds on its face and the affidavit of Faith Mutio Mutuku. It is deponed by counsel that the judgment was delivered in their absence.
4. That as soon as the applicant learnt about the judgment,it took counsel less than 30 days to procure a copy of the judgment, sought instructions, prepared a draft memorandum of appeal and brought this application. Counsel for the applicant has annexed extracts from their alleged court attendances to demonstrate that the applicant’s counsel diarised the matter several times and it was as soon as they became aware of the judgment, they took necessary action within 30 days.
5. The application is also supported by the applicant-Jacqueline Mueni Mutwii. The applicant avers that they were aggrieved by the judgment of the subordinate court with regard to the apportionment of liability.
6. The application is opposed by the affidavit of Jane Monica Nyenge the 1 st Respondent. She depones that the judgment was uploaded on 27/1/2025 and the respondent has annexed evidence of the e-filing activities. That there was no explanation for the delay for 30 days.
7. That there is no explanation for the delay of over 2 months from the date of the judgment. That the Respondent has settled kshs. 1,229,720/= and will suffer prejudice if the matter is opened up. The further affidavit was sworn by counsel for the applicant to explain the delay in filing the application.
8. I did not find the submissions of the applicant.
9. The respondents cite Sections 75G and 95 of the Civil Procedure Act and Order 50 rule 6, the law on extension of time. They also rely on the guidance of the Supreme Court in Nicholas Kiptoo Arap Korir Salat –vs- IEBC and 7 Others [2014[ eKLR, that extension of time is not a right but an equitable remedy granted to a diligent party who shows justifiable cause for failing to act within the prescribed period.
10. It is submitted that the there is no dispute that the judgement was scheduled for the 19 th of September 2024, delivered on 23/1/2025 in the absence of both counsel/parties. That judgement was uploaded on the Judiciary E-filing plat form on 27/1/2025 at which time it became accessible to both parties.
11. The respondent also relies on Joseph Ngigi Ibare –vs- Myovi James & Another [2016] eKLR , that even a 2 day delay without explanation is unreasonable delay; that equity does not assist the indolent, and the applicant herein has not demonstrated any seriousness, or any justifiable explanation for the prolonged delay, hence they do not deserve the exercise of the discretion of this court. It is also submitted that the intended appeal raises no arguable issues either of facts or law.
12. They argued that the application would be prejudicial to the respondents who have fully settled the judgment sum and the costs awarded in the sum of kshs.1,447,276/= as the respondents will have to expend the additional resources defending an appeal stemming out of the applicant’s indolence.
13. I have carefully considered the application before me, the Rival affidavits and the respondents submissions.
14. The issue for determination is whether the application has any merit.
15. Order 50 Rule 6 of the Civil Procedure Rule provides that time may be enlarged upon such terms as the justice of the case may require, and the costs shall be borne by the applicant, unless the court orders otherwise. Section 79G of the Civil Procedure Act provides for filing of appeals from subordinate courts 30 days from the date of the decree, a late appeal may be admitted for good and sufficient cause for not filing in time.
16. What good/sufficient cause has been placed before this court?. The reason given by the applicant is that the judgment was delivered in her absence and though they knew about the judgment on 28/2/2025, they did not file the application until 25/3/2025.
17. This was the applicant’s case. Having the judgment delivered in their absence is not a good reason in these days of e filing. In this case both the plaintiff and the defendant were absent. However, it is the defendant who brought the contents of the judgment to the attention plaintiff who ought to have been more vigilant because it was her case, and even after the plaintiff learnt about the judgment, it took the plaintiff another 30 days to file this application.
18. In this case I have not found sufficient/good cause, that calls for the exercise of the equitable discretion of this court.
19. In the circumstances the application is declined.
Dated, signed and delivered virtually this 22 nd My 2026
Mumbua T. Matheka
Judge
CA Chrispol
N/A for parties
Ruling HCCC Misc.E031 of 2025 Page 2 of 2
IN THE HIGH COURT OF KENYA AT ELDAMA RAVINE
HCCCMISC CASE NO.E031 OF 2025
JACQUELINE MUENI MUTWII and EVANS MUSEMBI KIMATU
(Suing as the administrator and/or legal representative of the estate of NICHOLAS MUKOMA MUTWII (Deceased)..………............................………………… APPLICANT
-VERSUS-
JANE MONICA NYANGE……………………………….1 ST RESPONDENT
RAPHAEL LAVU NYENGE…………………………….. 2 ND RESPONDENT
RULING
1. There is a Motion before me dated 28/3/2025 brought under order 50 rule 6, order 51 rule 1 of the Civil Procedure Rule, section 79G and Section 3A of the Civil Procedure Act.
2. The applicant seeks an order to enlarge time, leave to appeal out time, and the Memorandum of appeal dated 28/3/2025 be deemed duly filed.
3. The application is supported by the grounds on its face and the affidavit of Faith Mutio Mutuku. It is deponed by counsel that the judgment was delivered in their absence.
4. That as soon as the applicant learnt about the judgment,it took counsel less than 30 days to procure a copy of the judgment, sought instructions, prepared a draft memorandum of appeal and brought this application. Counsel for the applicant has annexed extracts from their alleged court attendances to demonstrate that the applicant’s counsel diarised the matter several times and it was as soon as they became aware of the judgment, they took necessary action within 30 days.
5. The application is also supported by the applicant-Jacqueline Mueni Mutwii. The applicant avers that they were aggrieved by the judgment of the subordinate court with regard to the apportionment of liability.
6. The application is opposed by the affidavit of Jane Monica Nyenge the 1 st Respondent. She depones that the judgment was uploaded on 27/1/2025 and the respondent has annexed evidence of the e-filing activities. That there was no explanation for the delay for 30 days.
7. That there is no explanation for the delay of over 2 months from the date of the judgment. That the Respondent has settled kshs. 1,229,720/= and will suffer prejudice if the matter is opened up. The further affidavit was sworn by counsel for the applicant to explain the delay in filing the application.
8. I did not find the submissions of the applicant.
9. The respondents cite Sections 75G and 95 of the Civil Procedure Act and Order 50 rule 6, the law on extension of time. They also rely on the guidance of the Supreme Court in Nicholas Kiptoo Arap Korir Salat –vs- IEBC and 7 Others [2014[ eKLR, that extension of time is not a right but an equitable remedy granted to a diligent party who shows justifiable cause for failing to act within the prescribed period.
10. It is submitted that the there is no dispute that the judgement was scheduled for the 19 th of September 2024, delivered on 23/1/2025 in the absence of both counsel/parties. That judgement was uploaded on the Judiciary E-filing plat form on 27/1/2025 at which time it became accessible to both parties.
11. The respondent also relies on Joseph Ngigi Ibare –vs- Myovi James & Another [2016] eKLR , that even a 2 day delay without explanation is unreasonable delay; that equity does not assist the indolent, and the applicant herein has not demonstrated any seriousness, or any justifiable explanation for the prolonged delay, hence they do not deserve the exercise of the discretion of this court. It is also submitted that the intended appeal raises no arguable issues either of facts or law.
12. They argued that the application would be prejudicial to the respondents who have fully settled the judgment sum and the costs awarded in the sum of kshs.1,447,276/= as the respondents will have to expend the additional resources defending an appeal stemming out of the applicant’s indolence.
13. I have carefully considered the application before me, the Rival affidavits and the respondents submissions.
14. The issue for determination is whether the application has any merit.
15. Order 50 Rule 6 of the Civil Procedure Rule provides that time may be enlarged upon such terms as the justice of the case may require, and the costs shall be borne by the applicant, unless the court orders otherwise. Section 79G of the Civil Procedure Act provides for filing of appeals from subordinate courts 30 days from the date of the decree, a late appeal may be admitted for good and sufficient cause for not filing in time.
16. What good/sufficient cause has been placed before this court?. The reason given by the applicant is that the judgment was delivered in her absence and though they knew about the judgment on 28/2/2025, they did not file the application until 25/3/2025.
17. This was the applicant’s case. Having the judgment delivered in their absence is not a good reason in these days of e filing. In this case both the plaintiff and the defendant were absent. However, it is the defendant who brought the contents of the judgment to the attention plaintiff who ought to have been more vigilant because it was her case, and even after the plaintiff learnt about the judgment, it took the plaintiff another 30 days to file this application.
18. In this case I have not found sufficient/good cause, that calls for the exercise of the equitable discretion of this court.
19. In the circumstances the application is declined.
Dated, signed and delivered virtually this 22 nd My 2026
Mumbua T. Matheka
Judge
CA Chrispol
N/A for parties
Ruling HCCC Misc.E031 of 2025 Page 2 of 2