Vide application dated 12th May 2025 the Applicant sought that under Article 50 and 159(2) of the Constitution of Kenya, 2010, Order 50 Rule 6, Section IA & 1B, 3 and 3A of the Civil procedure Act, Order 42 Rule 6, Order 51 Rule 1 and all enabling provisions of the law that the proposed Appellant be granted leave to appeal out of time against the whole Judgment of the Hon. S. N. Mutava Resident Magistrate delivered on 29th, November 2023. THAT the notice of the Appeal and Memorandum of Appeal annexed hereto be deemed as duly filed and served and that the costs of this Application be provided for.
The application was premised on the following grounds:
a. THAT the appeal has a good chance of success.
b. THAT the delay in filing the appeal was inadvertent and excusable due to the delay obtaining sufficient instructions from the proposed Appellant, and since we are an institution that depends entirely on instructions and we could not act on the matter.
c. THAT the delay was for a period of two (4) months.
d. THAT the application is brought in good faith and as such no prejudice shall be suffered by the Respondent if the application is allowed .
e. The Applicant undertook to abide by any reasonable consideration that the court may make in allowing the application.
f. It was also averred that it is in the Interest of Justice to allow this application
g. The application is also supported by the annexed affidavit of James Nyakundi Ogaro and other reasons and grounds as may be adduced at the hearing.
The application was canvassed by way of written submissions. The Applicant’s submissions are dated 20.11.2025 and are to the effect the Applicant was desirous of appealing against the judgment delivered against him in the subordinate court on the 29th day of November, 2023, by Honourable S. N. Mutava, a Resident Magistrate in Rongo Senior Resident Magistrate's Court Civil Suit Number 025 in favour of the Respondent herein.
It was submitted that upon delivery of the said judgment on the 29th day of November, 2023, the Applicant was granted a stay of execution of the said judgment and decree for a period of thirty (30) days, which stay lapsed on the 29th day of December, 2023.
That Immediately after the delivery of the said judgment, and specifically on the 30th day of November, 2023, the Applicant wrote a letter to the trial court requesting for a certified copy of the said judgment, but the same was not ready for collection since it was handwritten.
That upon eventually receiving, perusing, and deliberating on the said judgment, it became apparent to the Applicant that the said judgment was unfair and unjust, hence necessitating an appeal therefrom. To this end, the Applicant instructed his Advocates to file a Notice of Appeal and a Memorandum of Appeal dated the 8th day of March, 2024, raising triable issues with high chances of success.
It was submitted that the delay in filing the said Notice of Appeal and Memorandum of Appeal within the prescribed time was occasioned by the delay in obtaining sufficient instructions from the Applicant to file the appeal, during which time the statutory period for filing the appeal had lapsed. It was further submitted that the Applicant is a lay institution that entirely depends on instructions from his Advocates, who could not act without such instructions.
It was submitted that the Applicant was desirous of appealing against the judgment delivered on 29th November 2023 and wishes to be afforded a chance to lodge an appeal on the merits as the annexed Memorandum of Appeal has overwhelming chances of success.
It was further submitted that the Applicant verily believes that the delay occasioned herein was not inordinate as to be inexcusable and prayed that the same be allowed so that he can appeal out of time.
It was submitted that by the Constitutional, Statutory and procedural provisions cited confer a wide and benevolent discretion on this Court to extend time for filing an appeal, even after expiry of the statutory period, in the interest of justice.
The Applicant cited the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [19991 2 EA 231 to support his position that the court has wide discretion to extend time to appeal out of time where the Court of Appeal held:
"It is now well 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 Applicant also submitted that the issues the 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. "
The case of Fakir Mohamed v Joseph Mugambi & 2 Others [20051 eKLR, was cited where the Court emphasized that the discretion to extend time is "unfettered," though it must be exercised judicially and capriciously.
"The exercise of this Court's discretion under Rule 4 has followed a well-beaten path since the stricture of 'sufficient reason' was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) 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 delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance — are all relevant but not exhaustive factors. "
Further in the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR, it was submitted that the court reiterated that the right to be heard on appeal should not be lightly denied where a plausible explanation exists for delay.
The Applicant also sought to rely on the authority in the case of Mwangi v Kenya Airways Ltd [20031 KLR 486 to reinforce that the discretion to enlarge time should favour a party who demonstrates good faith and reasonable cause.
That in determining whether to grant leave to appeal out of time, the courts have consistently applied the fourfold test as laid down in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1991] 2 EA 231, which requires consideration of:
a) the length of the delay;
b) the reason for the delay;
c) the arguability or chances of success of the intended appeal; and
d) the degree of prejudice that may be occasioned to the respondent if the application is granted.
The Applicant invited the court to exercise its discretion in his favor as the facts on record fully satisfy the fourfold test set out in Leo Sila Mutiso v Rose Hellen 119991 2 EA 231, as subsequently restated in Fakir Mohamed v Joseph Mugambi & 2 Others 120051 eKLR and Nicholas Kiptoo Arap Korir salat v IEBC & 7 Others 120141 eKLR.
It was submitted that the judgment in Rongo SPM Civil case No. 25 of 2020 was delivered on 29th November 2023, while the present application was filed after expiry of the 30-day period prescribed under Section 79G of the Civil Procedure Act. The intervening delay was occasioned by the unavailability of the handwritten judgment and the time required to obtain typed proceedings and secure client instructions. That the period of delay, though regrettable, is not inordinate and falls well within the tolerance recognized in Fakir Mohamed (supra), where the Court observed that delay must always be assessed contextually and that administrative causes of delay may be excusable.
The Applicant argued that Section 79G of the Civil Procedure Act permits enlargement of time where "good and sufficient cause" is shown. The Applicant promptly requested a copy of the judgment on 30th November 2023 but was informed that it was not ready for collection. The delay therefore arose from circumstances beyond the Applicant's control, and not from indolence. As reaffirmed in Thuita Mwangi v Kenya Airways Ltd 120031 eKLR, a plausible and reasonable explanation for delay should not be visited upon a litigant to bar access to appellate justice.
On whether the Applicant had an arguable appeal, it was submitted that the draft Memorandum of Appeal annexed to the Supporting Affidavit raises serious and bona fide grounds, including misdirection in evaluation of evidence and misapprehension of law by the trial court. In Leo Sila Mutiso (supra), the Court of Appeal held that at this stage an applicant need only show that the intended appeal is not frivolous. The Applicant therefore satisfies this limb of the test.
On whether the Respondent will be prejudiced by the grant of leave to appeal out of time the Applicant submitted that the Respondent is capable of being compensated in costs if this application is granted.
The Applicant sought to rely on Article 159(2) of the Constitution and urged the court to uphold substantive justice over procedural technicalities in the interest of justice. It was contended that the Applicant had acted in good faith and seeks only to be heard on appeal. The Applicant argued that he fell under the holding of the Supreme Court holding in Nicholas Kiptoo Arap Korir Salat where it was emphasized that extension of time is an equitable remedy available to a deserving party.
In light of the foregoing, the Applicant contended that he had satisfied all the conditions under the fourfold test and had demonstrated "good and sufficient cause" within the meaning of Section 79G of the Civil Procedure Act. That the delay is reasonable, the explanation credible and the intended appeal arguable. He also said that the Respondent will suffer no prejudice, and it is in the broader interests of justice that leave be granted.
The Respondent, Stecol Corporation Limited filed submissions dated 15th August 2025 opposing the application for reasons it was a textbook abuse of the court process, fashioned as an appeal for discretion but in reality, designed to resurrect a dispute that was conclusively determined over one year and ten months ago.
It was submitted that the Applicant has not merely come to court late but he has arrived after the doors of justice were lawfully closed, presenting excuses that are not only untenable but plainly illogical and unsupported by credible evidence.
It was the Respondent’s case that it is now settled law that leave to appeal out of time is not granted as a matter of sympathy or convenience, but only where an applicant discharges the heavy burden of demonstrating good and sufficient cause for the delay. The Applicant herein has awfully failed to meet that threshold.
That this Court’s discretion to enlarge time is judicial, principled, and sparingly exercised, guided by the well-known factors set out in Mwangi v Kenya Airways Ltd (2003) eKLR, none of which have been satisfied in the present circumstances.
The Respondent submitted that it will demonstrate that the delay is inordinate, unexplained, deliberate, and inexcusable; and that the intended appeal is devoid of arguable merit; that reopening this matter would cause grave prejudice to the Respondent, while undermining the finality of litigation and the integrity of court timelines.
The Respondent invited the Court to find that the Applicant’s motion is devoid of merit, legally untenable, and calculated to delay the enjoyment of the fruits of a valid judgment, and to accordingly dismiss the same with costs.
The Respondent submitted that the application was grossly incompetent, hopelessly time-barred, and founded on falsehoods and misrepresentation of facts, as clearly set out in the Replying Affidavit of HUACHEN DONG.
It was submitted that the power of this Court to extend time is discretionary and such discretion must be exercised judicially, cautiously, and only upon sufficient cause being shown. It is not a right; it is a privilege granted sparingly.
It was submitted that it is trite law that an applicant seeking extension of time must satisfy the court that there exists “good and sufficient cause” for the delay.
In the celebrated case of Mwangi v Kenya Airways Ltd (2003) eKLR, the Court laid down the guiding principles, namely:
a) The length of the delay;
b) The reasons for the delay;
c) The arguability of the intended appeal;
d) The degree of prejudice to the Respondent;
e) The importance of compliance with timelines; and
f) The effect on the administration of justice.
The Respondent also cited the holding in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) eKLR, where the Supreme Court upheld the principles upon which extension of time is to be granted by emphatically stating that extension of time is an equitable remedy, not available to a party who has been indolent.
It was submitted that the Applicant herein bears the burden of satisfying all these criteria, not just selectively.
It was submitted that the delay to file appeal from 29th November 2023 to 12th May 2025 approximately one year and ten months was not merely long; it is egregious, unconscionable, abusive, and legally indefensible and cannot be cured by mere sympathy. That delay of this magnitude defeats equity and kills discretion.
It was further submitted that the Applicant’s attempt to portray the delay as “four months” is a deliberate falsehood intended to mislead this Court and should itself disentitle him to the exercise of discretion.
The Respondent submitted that the Applicant allegation that the delay was occasioned by ‘delay in obtaining instructions’ is illogical, hollow, and legally offensive as instructions cannot be delayed by a litigant to himself. That one does not need permission from oneself to act. This excuse collapses under its own weight and fails to meet the threshold of “good and sufficient cause.”
The Respondent supported it argument on indolence on the part of the Applicant with the case of Bi-Mach Engineers Ltd v James Kahoro Mwangi (2011) eKLR, where the Court held that mere inaction, laxity, or casual conduct does not amount to sufficient cause.
It was argued that the Applicant simply went to sleep and now seeks to convert his own indolence into a ground for judicial indulgence. The law does not aid the indolent.
On whether the Applicant had an arguable appeal the Respondent submitted that the Applicant had not annexed a draft Memorandum of Appeal nor disclosed any arguable grounds. It was not enough for an applicant to make bare allegations that an appeal “has high chances of success.” The Court must be shown prima facie grounds that raise serious legal questions.
In Kenya Commercial Bank Ltd v Nicholas Ombija (2009) eKLR, the Court held that where no serious issues are disclosed, extension of time should be refused.
It was submitted that the silence of the Applicant on the substance of the intended appeal speaks volumes. It confirms that the Application is not about justice, but about buying time and frustrating the Respondent.
On whether grant of the orders sought will prejudice the Respondent it was submitted that the Respondent had since the delivery of judgment, reorganized its affairs and adjusted its legal and commercial position in reliance on the finality of the court’s judgment and to reopen this matter now would occasion grave and irreparable prejudice.
The Respondent submitted that litigation must come to an end and the courts do not exist to keep disputes perpetually alive.
The case of Ivita v Kyumbu (1984) KLR 441, was cited wherein the Court emphasized that justice must be administered without delay and that equity does not assist a party who sleeps on their rights. It was argued that granting this Application will undermine public confidence in judicial certainty and reward negligence.
According to the Respondent this Application is not a genuine invocation of judicial discretion. It is a strategic afterthought, intended to delay execution of a lawful and binding judgment and the Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd (2009) eKLR warned that courts must guard against litigants who abuse court process by re-litigating settled matters.
The Respondent urged the court to find that the Applicant’s Motion dated 12th May 2025 is not a genuine plea for justice but a belated attempt to resuscitate a matter that was lawfully, finally and conclusively determined. That the Applicant has failed to demonstrate any good and sufficient cause to warrant the indulgence of this Court and instead invites the Court to reward indolence, misrepresentation and procedural lethargy.
The court was urged to uphold the sanctity of statutory timelines, preserve the principle of finality in litigation, and decline the Applicant’s invitation to exercise discretion in vain. That the application was a classic abuse of court process and deserves to be dismissal with costs in its entirety.
Analysis and determination
Having considered the application herein, the grounds upon which it was made and the applicable constitutional, statutory and procedural provisions the issue for determination is whether the Applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
Section 79G of the Civil Procedure Act provides that an appeal from a subordinate court shall be filed within thirty (30) days of the decree or order appealed from, 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.
The principles guiding the exercise of discretion to enlarge time are settled. The Court considers, among other factors, the length of the delay, the reason(s) for the delay, the arguability of the intended appeal, and the prejudice to the respondent. These principles are articulated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, Mwangi v Kenya Airways Ltd [2003] eKLR, Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR which both parties have ably cited and relied upon.
On the issue of length of delay, the judgment sought to be appealed against was delivered on 29th November 2023. The statutory period for filing an appeal lapsed on 29th December 2023.
The present application was filed on 12th May 2025, which is in excess of one year after the expiry of the prescribed period. The delay is therefore substantial and calls for a satisfactory explanation.
The Applicant attributed the delay to the unavailability of a handwritten judgment and to delay in obtaining instructions to lodge an appeal. While delay occasioned by preparation of proceedings or judgment may, in appropriate circumstances, constitute sufficient cause, such delay must be specifically demonstrated. In the present case, there is no evidence indicating when the judgment became available, nor is there a certificate of delay. The Applicant did not explain how the alleged delay accounts for the prolonged period that followed.
With regard to delay in obtaining instructions, courts have consistently held that this, without more, does not amount to good and sufficient cause. A litigant is expected to act with diligence in the pursuit of his rights. Mere inaction or laxity does not warrant the exercise of judicial discretion. Importantly, the Applicant did not satisfactorily explain the entire period of delay from the lapse of the statutory time to the filing of the present application. The reasons advanced are therefore inadequate.
On whether the Applicant has demonstrated that he has an arguable appeal, he annexed a draft Memorandum of Appeal and a copy of judgment from the trial court where judgment was entered as per the contract between him and the Respondent. The supporting affidavit does not explain how the said judgment was unfair and unjust to warrant grant of orders for leave to appeal out of time or even to find that the intended appeal raises arguable issues. In consideration that the Applicant has not explained why he thinks his intended appeal raises arguable issues coupled with the fact of inordinate delay, this court finds that the Applicant has not satisfied the court for grant of orders sought.
The Respondent contended that it relied on the finality of the judgment and that reopening the matter after such delay would occasion prejudice. While prejudice may in some cases be compensated by an award of costs, the Court must also consider the importance of compliance with statutory timelines and the principle that litigation must come to an end. Article 159(2) of the Constitution does not operate to negate mandatory procedural requirements, nor does it excuse unexplained or inordinate delay.
Having considered the application, the affidavits on record, the submissions by counsel, and the applicable law, the Court finds that the Applicant has failed to demonstrate good and sufficient cause within the meaning of Section 79G of the Civil Procedure Act. The delay in filing the intended appeal is inordinate and has not been satisfactorily explained. The discretion of the Court cannot therefore be exercised in favor of the Applicant.
Consequently, the Notice of Motion dated 12th May 2025 is dismissed with costs to the Respondent.
DELIVERED DATED AND SIGNED AT MIGORI THIS 29TH DAY OF JANUARY, 2026.
The application was premised on the following grounds:
a. THAT the appeal has a good chance of success.
b. THAT the delay in filing the appeal was inadvertent and excusable due to the delay obtaining sufficient instructions from the proposed Appellant, and since we are an institution that depends entirely on instructions and we could not act on the matter.
c. THAT the delay was for a period of two (4) months.
d. THAT the application is brought in good faith and as such no prejudice shall be suffered by the Respondent if the application is allowed .
e. The Applicant undertook to abide by any reasonable consideration that the court may make in allowing the application.
f. It was also averred that it is in the Interest of Justice to allow this application
g. The application is also supported by the annexed affidavit of James Nyakundi Ogaro and other reasons and grounds as may be adduced at the hearing.
The application was canvassed by way of written submissions. The Applicant’s submissions are dated 20.11.2025 and are to the effect the Applicant was desirous of appealing against the judgment delivered against him in the subordinate court on the 29th day of November, 2023, by Honourable S. N. Mutava, a Resident Magistrate in Rongo Senior Resident Magistrate's Court Civil Suit Number 025 in favour of the Respondent herein.
It was submitted that upon delivery of the said judgment on the 29th day of November, 2023, the Applicant was granted a stay of execution of the said judgment and decree for a period of thirty (30) days, which stay lapsed on the 29th day of December, 2023.
That Immediately after the delivery of the said judgment, and specifically on the 30th day of November, 2023, the Applicant wrote a letter to the trial court requesting for a certified copy of the said judgment, but the same was not ready for collection since it was handwritten.
That upon eventually receiving, perusing, and deliberating on the said judgment, it became apparent to the Applicant that the said judgment was unfair and unjust, hence necessitating an appeal therefrom. To this end, the Applicant instructed his Advocates to file a Notice of Appeal and a Memorandum of Appeal dated the 8th day of March, 2024, raising triable issues with high chances of success.
It was submitted that the delay in filing the said Notice of Appeal and Memorandum of Appeal within the prescribed time was occasioned by the delay in obtaining sufficient instructions from the Applicant to file the appeal, during which time the statutory period for filing the appeal had lapsed. It was further submitted that the Applicant is a lay institution that entirely depends on instructions from his Advocates, who could not act without such instructions.
It was submitted that the Applicant was desirous of appealing against the judgment delivered on 29th November 2023 and wishes to be afforded a chance to lodge an appeal on the merits as the annexed Memorandum of Appeal has overwhelming chances of success.
It was further submitted that the Applicant verily believes that the delay occasioned herein was not inordinate as to be inexcusable and prayed that the same be allowed so that he can appeal out of time.
It was submitted that by the Constitutional, Statutory and procedural provisions cited confer a wide and benevolent discretion on this Court to extend time for filing an appeal, even after expiry of the statutory period, in the interest of justice.
The Applicant cited the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi [19991 2 EA 231 to support his position that the court has wide discretion to extend time to appeal out of time where the Court of Appeal held:
"It is now well 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 Applicant also submitted that the issues the 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. "
The case of Fakir Mohamed v Joseph Mugambi & 2 Others [20051 eKLR, was cited where the Court emphasized that the discretion to extend time is "unfettered," though it must be exercised judicially and capriciously.
"The exercise of this Court's discretion under Rule 4 has followed a well-beaten path since the stricture of 'sufficient reason' was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) 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 delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance — are all relevant but not exhaustive factors. "
Further in the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR, it was submitted that the court reiterated that the right to be heard on appeal should not be lightly denied where a plausible explanation exists for delay.
The Applicant also sought to rely on the authority in the case of Mwangi v Kenya Airways Ltd [20031 KLR 486 to reinforce that the discretion to enlarge time should favour a party who demonstrates good faith and reasonable cause.
That in determining whether to grant leave to appeal out of time, the courts have consistently applied the fourfold test as laid down in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1991] 2 EA 231, which requires consideration of:
a) the length of the delay;
b) the reason for the delay;
c) the arguability or chances of success of the intended appeal; and
d) the degree of prejudice that may be occasioned to the respondent if the application is granted.
The Applicant invited the court to exercise its discretion in his favor as the facts on record fully satisfy the fourfold test set out in Leo Sila Mutiso v Rose Hellen 119991 2 EA 231, as subsequently restated in Fakir Mohamed v Joseph Mugambi & 2 Others 120051 eKLR and Nicholas Kiptoo Arap Korir salat v IEBC & 7 Others 120141 eKLR.
It was submitted that the judgment in Rongo SPM Civil case No. 25 of 2020 was delivered on 29th November 2023, while the present application was filed after expiry of the 30-day period prescribed under Section 79G of the Civil Procedure Act. The intervening delay was occasioned by the unavailability of the handwritten judgment and the time required to obtain typed proceedings and secure client instructions. That the period of delay, though regrettable, is not inordinate and falls well within the tolerance recognized in Fakir Mohamed (supra), where the Court observed that delay must always be assessed contextually and that administrative causes of delay may be excusable.
The Applicant argued that Section 79G of the Civil Procedure Act permits enlargement of time where "good and sufficient cause" is shown. The Applicant promptly requested a copy of the judgment on 30th November 2023 but was informed that it was not ready for collection. The delay therefore arose from circumstances beyond the Applicant's control, and not from indolence. As reaffirmed in Thuita Mwangi v Kenya Airways Ltd 120031 eKLR, a plausible and reasonable explanation for delay should not be visited upon a litigant to bar access to appellate justice.
On whether the Applicant had an arguable appeal, it was submitted that the draft Memorandum of Appeal annexed to the Supporting Affidavit raises serious and bona fide grounds, including misdirection in evaluation of evidence and misapprehension of law by the trial court. In Leo Sila Mutiso (supra), the Court of Appeal held that at this stage an applicant need only show that the intended appeal is not frivolous. The Applicant therefore satisfies this limb of the test.
On whether the Respondent will be prejudiced by the grant of leave to appeal out of time the Applicant submitted that the Respondent is capable of being compensated in costs if this application is granted.
The Applicant sought to rely on Article 159(2) of the Constitution and urged the court to uphold substantive justice over procedural technicalities in the interest of justice. It was contended that the Applicant had acted in good faith and seeks only to be heard on appeal. The Applicant argued that he fell under the holding of the Supreme Court holding in Nicholas Kiptoo Arap Korir Salat where it was emphasized that extension of time is an equitable remedy available to a deserving party.
In light of the foregoing, the Applicant contended that he had satisfied all the conditions under the fourfold test and had demonstrated "good and sufficient cause" within the meaning of Section 79G of the Civil Procedure Act. That the delay is reasonable, the explanation credible and the intended appeal arguable. He also said that the Respondent will suffer no prejudice, and it is in the broader interests of justice that leave be granted.
The Respondent, Stecol Corporation Limited filed submissions dated 15th August 2025 opposing the application for reasons it was a textbook abuse of the court process, fashioned as an appeal for discretion but in reality, designed to resurrect a dispute that was conclusively determined over one year and ten months ago.
It was submitted that the Applicant has not merely come to court late but he has arrived after the doors of justice were lawfully closed, presenting excuses that are not only untenable but plainly illogical and unsupported by credible evidence.
It was the Respondent’s case that it is now settled law that leave to appeal out of time is not granted as a matter of sympathy or convenience, but only where an applicant discharges the heavy burden of demonstrating good and sufficient cause for the delay. The Applicant herein has awfully failed to meet that threshold.
That this Court’s discretion to enlarge time is judicial, principled, and sparingly exercised, guided by the well-known factors set out in Mwangi v Kenya Airways Ltd (2003) eKLR, none of which have been satisfied in the present circumstances.
The Respondent submitted that it will demonstrate that the delay is inordinate, unexplained, deliberate, and inexcusable; and that the intended appeal is devoid of arguable merit; that reopening this matter would cause grave prejudice to the Respondent, while undermining the finality of litigation and the integrity of court timelines.
The Respondent invited the Court to find that the Applicant’s motion is devoid of merit, legally untenable, and calculated to delay the enjoyment of the fruits of a valid judgment, and to accordingly dismiss the same with costs.
The Respondent submitted that the application was grossly incompetent, hopelessly time-barred, and founded on falsehoods and misrepresentation of facts, as clearly set out in the Replying Affidavit of HUACHEN DONG.
It was submitted that the power of this Court to extend time is discretionary and such discretion must be exercised judicially, cautiously, and only upon sufficient cause being shown. It is not a right; it is a privilege granted sparingly.
It was submitted that it is trite law that an applicant seeking extension of time must satisfy the court that there exists “good and sufficient cause” for the delay.
In the celebrated case of Mwangi v Kenya Airways Ltd (2003) eKLR, the Court laid down the guiding principles, namely:
a) The length of the delay;
b) The reasons for the delay;
c) The arguability of the intended appeal;
d) The degree of prejudice to the Respondent;
e) The importance of compliance with timelines; and
f) The effect on the administration of justice.
The Respondent also cited the holding in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) eKLR, where the Supreme Court upheld the principles upon which extension of time is to be granted by emphatically stating that extension of time is an equitable remedy, not available to a party who has been indolent.
It was submitted that the Applicant herein bears the burden of satisfying all these criteria, not just selectively.
It was submitted that the delay to file appeal from 29th November 2023 to 12th May 2025 approximately one year and ten months was not merely long; it is egregious, unconscionable, abusive, and legally indefensible and cannot be cured by mere sympathy. That delay of this magnitude defeats equity and kills discretion.
It was further submitted that the Applicant’s attempt to portray the delay as “four months” is a deliberate falsehood intended to mislead this Court and should itself disentitle him to the exercise of discretion.
The Respondent submitted that the Applicant allegation that the delay was occasioned by ‘delay in obtaining instructions’ is illogical, hollow, and legally offensive as instructions cannot be delayed by a litigant to himself. That one does not need permission from oneself to act. This excuse collapses under its own weight and fails to meet the threshold of “good and sufficient cause.”
The Respondent supported it argument on indolence on the part of the Applicant with the case of Bi-Mach Engineers Ltd v James Kahoro Mwangi (2011) eKLR, where the Court held that mere inaction, laxity, or casual conduct does not amount to sufficient cause.
It was argued that the Applicant simply went to sleep and now seeks to convert his own indolence into a ground for judicial indulgence. The law does not aid the indolent.
On whether the Applicant had an arguable appeal the Respondent submitted that the Applicant had not annexed a draft Memorandum of Appeal nor disclosed any arguable grounds. It was not enough for an applicant to make bare allegations that an appeal “has high chances of success.” The Court must be shown prima facie grounds that raise serious legal questions.
In Kenya Commercial Bank Ltd v Nicholas Ombija (2009) eKLR, the Court held that where no serious issues are disclosed, extension of time should be refused.
It was submitted that the silence of the Applicant on the substance of the intended appeal speaks volumes. It confirms that the Application is not about justice, but about buying time and frustrating the Respondent.
On whether grant of the orders sought will prejudice the Respondent it was submitted that the Respondent had since the delivery of judgment, reorganized its affairs and adjusted its legal and commercial position in reliance on the finality of the court’s judgment and to reopen this matter now would occasion grave and irreparable prejudice.
The Respondent submitted that litigation must come to an end and the courts do not exist to keep disputes perpetually alive.
The case of Ivita v Kyumbu (1984) KLR 441, was cited wherein the Court emphasized that justice must be administered without delay and that equity does not assist a party who sleeps on their rights. It was argued that granting this Application will undermine public confidence in judicial certainty and reward negligence.
According to the Respondent this Application is not a genuine invocation of judicial discretion. It is a strategic afterthought, intended to delay execution of a lawful and binding judgment and the Court of Appeal in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd (2009) eKLR warned that courts must guard against litigants who abuse court process by re-litigating settled matters.
The Respondent urged the court to find that the Applicant’s Motion dated 12th May 2025 is not a genuine plea for justice but a belated attempt to resuscitate a matter that was lawfully, finally and conclusively determined. That the Applicant has failed to demonstrate any good and sufficient cause to warrant the indulgence of this Court and instead invites the Court to reward indolence, misrepresentation and procedural lethargy.
The court was urged to uphold the sanctity of statutory timelines, preserve the principle of finality in litigation, and decline the Applicant’s invitation to exercise discretion in vain. That the application was a classic abuse of court process and deserves to be dismissal with costs in its entirety.
Analysis and determination
Having considered the application herein, the grounds upon which it was made and the applicable constitutional, statutory and procedural provisions the issue for determination is whether the Applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
Section 79G of the Civil Procedure Act provides that an appeal from a subordinate court shall be filed within thirty (30) days of the decree or order appealed from, 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.
The principles guiding the exercise of discretion to enlarge time are settled. The Court considers, among other factors, the length of the delay, the reason(s) for the delay, the arguability of the intended appeal, and the prejudice to the respondent. These principles are articulated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, Mwangi v Kenya Airways Ltd [2003] eKLR, Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR which both parties have ably cited and relied upon.
On the issue of length of delay, the judgment sought to be appealed against was delivered on 29th November 2023. The statutory period for filing an appeal lapsed on 29th December 2023.
The present application was filed on 12th May 2025, which is in excess of one year after the expiry of the prescribed period. The delay is therefore substantial and calls for a satisfactory explanation.
The Applicant attributed the delay to the unavailability of a handwritten judgment and to delay in obtaining instructions to lodge an appeal. While delay occasioned by preparation of proceedings or judgment may, in appropriate circumstances, constitute sufficient cause, such delay must be specifically demonstrated. In the present case, there is no evidence indicating when the judgment became available, nor is there a certificate of delay. The Applicant did not explain how the alleged delay accounts for the prolonged period that followed.
With regard to delay in obtaining instructions, courts have consistently held that this, without more, does not amount to good and sufficient cause. A litigant is expected to act with diligence in the pursuit of his rights. Mere inaction or laxity does not warrant the exercise of judicial discretion. Importantly, the Applicant did not satisfactorily explain the entire period of delay from the lapse of the statutory time to the filing of the present application. The reasons advanced are therefore inadequate.
On whether the Applicant has demonstrated that he has an arguable appeal, he annexed a draft Memorandum of Appeal and a copy of judgment from the trial court where judgment was entered as per the contract between him and the Respondent. The supporting affidavit does not explain how the said judgment was unfair and unjust to warrant grant of orders for leave to appeal out of time or even to find that the intended appeal raises arguable issues. In consideration that the Applicant has not explained why he thinks his intended appeal raises arguable issues coupled with the fact of inordinate delay, this court finds that the Applicant has not satisfied the court for grant of orders sought.
The Respondent contended that it relied on the finality of the judgment and that reopening the matter after such delay would occasion prejudice. While prejudice may in some cases be compensated by an award of costs, the Court must also consider the importance of compliance with statutory timelines and the principle that litigation must come to an end. Article 159(2) of the Constitution does not operate to negate mandatory procedural requirements, nor does it excuse unexplained or inordinate delay.
Having considered the application, the affidavits on record, the submissions by counsel, and the applicable law, the Court finds that the Applicant has failed to demonstrate good and sufficient cause within the meaning of Section 79G of the Civil Procedure Act. The delay in filing the intended appeal is inordinate and has not been satisfactorily explained. The discretion of the Court cannot therefore be exercised in favor of the Applicant.
Consequently, the Notice of Motion dated 12th May 2025 is dismissed with costs to the Respondent.
DELIVERED DATED AND SIGNED AT MIGORI THIS 29TH DAY OF JANUARY, 2026.