'BRIEF FACTS
The Applicant filed the instant application dated 13th June, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. THAT this Honourable Court be pleased to grant the Applicant leave to file and serve his appeal out of time and/or that time for filing and serving the appeal be extended and/or enlarged.
4. THAT the draft memorandum of appeal annexed hereto be deemed as duly filed and served save for payment of filing fees.
5. THAT pending the hearing and determination of the intended appeal, this Honourable Court be pleased to stay the execution of the judgment in NAKURU MCELC NO E070 OF 2024 JOHN KIPRUTO KOECH V JAMES KIBOCHA KARANJA & OTHERS the resultant decree and all other consequential orders arising therefrom.
6. THAT costs of the application do abide the outcome of the appeal.
The Application was based on grounds set out and supported by the Affidavit of JAMES KIBOCHA KARANJA the Applicant sworn on 13th June, 2025. He stated that the Respondent had filed a suit against him being Nakuru MCELC No. E070 of 2024. He stated that the Respondent also filed two applications that sought for interim injunctive reliefs and forensic examination of an agreement dated 17th November, 1998. He stated that on 26th March, 2025 court allowed both applications in the absence of both parties. He went on to state that being aggrieved by the said ruling, he wished to appeal against it. He stated that he has been in actual possession of the suit premises where he has since built his home and developed it extensively. He stated that the effect of the said orders exposed him to immediate displacement thus occasioning him immense hardship and emotional distress. He stated that neither himself nor his advocates had been notified of the ruling date and only became aware of the same around June, 2025. He stated that the delay in filing the intended appeal was caused by miscommunication and the mistaken belief that the ruling was still pending. He added that the intended appeal raised serious legal and factual issues and that he was ready and willing to comply with any conditions the court may impose for the grant of the orders sought. He also stated that no prejudice will be occasioned to the Respondents if the application was allowed. He urged the court to allow the application as prayed.
Response
The Respondent filed his Replying Affidavit sworn on 21st June, 2025 where he averred that the application was an afterthought and abuse of the court process. He averred that contrary to the assertion made by the Applicant the court on 13th November, 2024 had affirmed of its intention to post the ruling on the CTS system which was accessible to all counsels from the comforts of their offices. He further averred that he had never interacted with the Applicant in respect to the sale of his parcel of land. He averred that subdivision and sale of the resultant portion relating to Dundori Muguathi Block 2/59 was fraudulent actions as well an unjust enrichment exercise. He averred that the Applicant has never complied with the orders and is thus abusing the court process by seeking to rope in the higher court to assist in disenfranchisement as well as furthering fraud. He averred that if the orders were to be vacated, the Applicant was likely to sell the assets and flee which may lead to a situation of disenfranchisement and an unjust endeavor and frustrate the substratum this matter. He averred that the application has not been timeously but filed solely for purposes of frustrating the substratum of the matter. He added that no prejudice will be suffered by the Applicant if he submitted the original documents to the police for forensic examination as the exercise was purely a scientific. He went on to aver that the draft memorandum of appeal did not raise any arguable issues. He averred that he continues to suffer prejudice as he is yet to benefit from the fruits of the ruling. He urged the court to dismiss the application with costs.
Submissions
Counsel for the Respondent filed his submissions dated 5th August, 2025 where he gave a background of the case and submits that if the orders as sought are granted there existed a likelihood that with the vacation of the orders, the entire parcel of land would be sold and the Respondent’s constitutional rights under Article 40 of the Constitution of Kenya would be infringed. He submits that the application has been brought after a huge delay which was an indication of indolence and afterthought. He went on to submit that no prejudice will be suffered by the Applicant if he complies with the court decision which were justly issued. He also submits that the grounds in the draft memorandum of appeal were a pure academic exercise which are meant to obscure the courts quest to establish the truth as per the orders justly issued. He submits that there were no eviction orders issued and that court essentially protects his stay contrary to the proprietary rights of the Respondent during the pendency of the matter and the attempted scientific verification exercise. He submits that the application was speculative since the Applicant pleads imminent threat without attaching any substantive proof of threat. It was counsel’s submission that the Applicant has not demonstrated substantial loss to warrant orders of stay of execution as no loss can be occasioned by the mere protection of the substratum during the pendency of the suit. He relied on Order 42 of the Civil Procedure Rules and submits that no sufficient reasons have been adduced to necessitate the staying of the orders. He submits that the draft memorandum of appeal does not raise any arguable grounds. He relied on the case of Kenya Commercial bank Ltd V Thomas Ondiek [1992] eKLR. It was his submission that the instant application was contrary to the expeditious disposal of suit which essentially allows the Respondent to derive full benefit of the process. In conclusion, he urged the court to dismiss the application with costs.
Analysis and Determination
This court has carefully considered the application, replying affidavit and submissions and the main issue for determination is whether the Applicant should be granted leave to file an appeal out of time.
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.”
It is noteworthy that this court has the discretion to extend time which ought to be exercised within the principles of the law. In the case of Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others [2014] KECA 782 (KLR) the court held as follows:
1. 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;
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
tie, is a consideration to be made on 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 to be suffered by the
respondents if the extension is granted;
6. Whether the application has been brought without undue
delay; and
7. Whether in certain cases, like election petitions, public
interest should be a consideration for extending time.”
Further, in the case of Nyamboki V Gathuru (Application 6 of 2019) [2019] KESC 44 (KLR) the court held that:
“..., the Court has to consider whether the explanation given
for any delay is reasonable and credible; whether there also
exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.”
In the instant case, it is not in dispute that judgment was delivered on 26th March, 2025. It is trite law that the Applicant had 30 days within which he was to file an appeal. It was however the Applicant’s claim that delay was as a result of miscommunication since neither himself nor his advocate were aware that the ruling had been delivered. The Respondent on the other hand contends that the trial court had directed that it would deliver its ruling via the CTS and that advocates for both parties were aware. Notably, the Applicant did not provide any evidence in support of the said allegations. It is a fact that the time lapsed between the date of the judgment and the date of filing this application was approximately three months thus the delay was inordinate. It is my considered view that the draft memorandum of appeal does not clearly bring out the issues in the delivered ruling.
It is trite that this court has power to enlarge time but, in the absence,
of reasonable explanation as to the delay, I find that the Applicant is
not deserving of this courts exercise of discretion in his favour.
Consequently, the application for orders of extension of time fails in its entirety. It is worthwhile to note that prayer 5 of the instant application on stay of execution ought to have been done in the subordinate court and for that reason, this court shall not belabor on it. Costs of the application to be borne by the Applicant. It is so ordered.
'
The Applicant filed the instant application dated 13th June, 2025 seeking the following orders:
1. Spent.
2. Spent.
3. THAT this Honourable Court be pleased to grant the Applicant leave to file and serve his appeal out of time and/or that time for filing and serving the appeal be extended and/or enlarged.
4. THAT the draft memorandum of appeal annexed hereto be deemed as duly filed and served save for payment of filing fees.
5. THAT pending the hearing and determination of the intended appeal, this Honourable Court be pleased to stay the execution of the judgment in NAKURU MCELC NO E070 OF 2024 JOHN KIPRUTO KOECH V JAMES KIBOCHA KARANJA & OTHERS the resultant decree and all other consequential orders arising therefrom.
6. THAT costs of the application do abide the outcome of the appeal.
The Application was based on grounds set out and supported by the Affidavit of JAMES KIBOCHA KARANJA the Applicant sworn on 13th June, 2025. He stated that the Respondent had filed a suit against him being Nakuru MCELC No. E070 of 2024. He stated that the Respondent also filed two applications that sought for interim injunctive reliefs and forensic examination of an agreement dated 17th November, 1998. He stated that on 26th March, 2025 court allowed both applications in the absence of both parties. He went on to state that being aggrieved by the said ruling, he wished to appeal against it. He stated that he has been in actual possession of the suit premises where he has since built his home and developed it extensively. He stated that the effect of the said orders exposed him to immediate displacement thus occasioning him immense hardship and emotional distress. He stated that neither himself nor his advocates had been notified of the ruling date and only became aware of the same around June, 2025. He stated that the delay in filing the intended appeal was caused by miscommunication and the mistaken belief that the ruling was still pending. He added that the intended appeal raised serious legal and factual issues and that he was ready and willing to comply with any conditions the court may impose for the grant of the orders sought. He also stated that no prejudice will be occasioned to the Respondents if the application was allowed. He urged the court to allow the application as prayed.
Response
The Respondent filed his Replying Affidavit sworn on 21st June, 2025 where he averred that the application was an afterthought and abuse of the court process. He averred that contrary to the assertion made by the Applicant the court on 13th November, 2024 had affirmed of its intention to post the ruling on the CTS system which was accessible to all counsels from the comforts of their offices. He further averred that he had never interacted with the Applicant in respect to the sale of his parcel of land. He averred that subdivision and sale of the resultant portion relating to Dundori Muguathi Block 2/59 was fraudulent actions as well an unjust enrichment exercise. He averred that the Applicant has never complied with the orders and is thus abusing the court process by seeking to rope in the higher court to assist in disenfranchisement as well as furthering fraud. He averred that if the orders were to be vacated, the Applicant was likely to sell the assets and flee which may lead to a situation of disenfranchisement and an unjust endeavor and frustrate the substratum this matter. He averred that the application has not been timeously but filed solely for purposes of frustrating the substratum of the matter. He added that no prejudice will be suffered by the Applicant if he submitted the original documents to the police for forensic examination as the exercise was purely a scientific. He went on to aver that the draft memorandum of appeal did not raise any arguable issues. He averred that he continues to suffer prejudice as he is yet to benefit from the fruits of the ruling. He urged the court to dismiss the application with costs.
Submissions
Counsel for the Respondent filed his submissions dated 5th August, 2025 where he gave a background of the case and submits that if the orders as sought are granted there existed a likelihood that with the vacation of the orders, the entire parcel of land would be sold and the Respondent’s constitutional rights under Article 40 of the Constitution of Kenya would be infringed. He submits that the application has been brought after a huge delay which was an indication of indolence and afterthought. He went on to submit that no prejudice will be suffered by the Applicant if he complies with the court decision which were justly issued. He also submits that the grounds in the draft memorandum of appeal were a pure academic exercise which are meant to obscure the courts quest to establish the truth as per the orders justly issued. He submits that there were no eviction orders issued and that court essentially protects his stay contrary to the proprietary rights of the Respondent during the pendency of the matter and the attempted scientific verification exercise. He submits that the application was speculative since the Applicant pleads imminent threat without attaching any substantive proof of threat. It was counsel’s submission that the Applicant has not demonstrated substantial loss to warrant orders of stay of execution as no loss can be occasioned by the mere protection of the substratum during the pendency of the suit. He relied on Order 42 of the Civil Procedure Rules and submits that no sufficient reasons have been adduced to necessitate the staying of the orders. He submits that the draft memorandum of appeal does not raise any arguable grounds. He relied on the case of Kenya Commercial bank Ltd V Thomas Ondiek [1992] eKLR. It was his submission that the instant application was contrary to the expeditious disposal of suit which essentially allows the Respondent to derive full benefit of the process. In conclusion, he urged the court to dismiss the application with costs.
Analysis and Determination
This court has carefully considered the application, replying affidavit and submissions and the main issue for determination is whether the Applicant should be granted leave to file an appeal out of time.
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.”
It is noteworthy that this court has the discretion to extend time which ought to be exercised within the principles of the law. In the case of Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 others [2014] KECA 782 (KLR) the court held as follows:
1. 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;
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
tie, is a consideration to be made on 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 to be suffered by the
respondents if the extension is granted;
6. Whether the application has been brought without undue
delay; and
7. Whether in certain cases, like election petitions, public
interest should be a consideration for extending time.”
Further, in the case of Nyamboki V Gathuru (Application 6 of 2019) [2019] KESC 44 (KLR) the court held that:
“..., the Court has to consider whether the explanation given
for any delay is reasonable and credible; whether there also
exist extenuating circumstances to enable the Court exercise its unfettered jurisdiction; and that the delay, in any event, should not be so inordinate as to leave no doubt, that an applicant has been slothful, and filed such an application as an after-thought.”
In the instant case, it is not in dispute that judgment was delivered on 26th March, 2025. It is trite law that the Applicant had 30 days within which he was to file an appeal. It was however the Applicant’s claim that delay was as a result of miscommunication since neither himself nor his advocate were aware that the ruling had been delivered. The Respondent on the other hand contends that the trial court had directed that it would deliver its ruling via the CTS and that advocates for both parties were aware. Notably, the Applicant did not provide any evidence in support of the said allegations. It is a fact that the time lapsed between the date of the judgment and the date of filing this application was approximately three months thus the delay was inordinate. It is my considered view that the draft memorandum of appeal does not clearly bring out the issues in the delivered ruling.
It is trite that this court has power to enlarge time but, in the absence,
of reasonable explanation as to the delay, I find that the Applicant is
not deserving of this courts exercise of discretion in his favour.
Consequently, the application for orders of extension of time fails in its entirety. It is worthwhile to note that prayer 5 of the instant application on stay of execution ought to have been done in the subordinate court and for that reason, this court shall not belabor on it. Costs of the application to be borne by the Applicant. It is so ordered.
'