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The Applicant, Jimmy Omwenga Nyakagwa t/a Fortunes Auctioneers , has moved this Court by a Notice of Motion dated 19 th August 2025, seeking leave to file an appeal out of time against the ruling delivered on 30 th April 2025 in Keroka Misc. Application No. E005 of 2023 .
The application is supported by the Applicant’s affidavit sworn on the same date. He avers that he was the auctioneer in Keroka CMCC No. E026 of 2022, where he attached movable property belonging to the 2 nd Respondent. The subordinate court, upon objection proceedings, found that execution could not issue against the Respondents, being a public educational institution. The Applicant now seeks leave to appeal out of time, contending that the trial court erred in law by treating the Respondents as immune from execution.
The Applicant asserts that the ruling of 30 th April 2025 was delivered without notice, and consequently, he was unaware of it within the statutory appeal period. He further avers that the delay in filing the appeal was occasioned by a misapprehension of the legal position regarding the corporate capacity of Boards of Management, which was only clarified to him later by counsel. He maintains that the intended appeal raises substantial and arguable points of law and that no prejudice would be suffered by the Respondents if leave is granted.
The application is opposed through a Replying Affidavit sworn on 19 th August 2025 by Charles Mitanya Sese , the Principal of the 1 st Respondent and Secretary to the 2 nd Respondent’s Board of Management. He depones that the application is incompetent, misconceived, and an abuse of the court process. He asserts that the date of delivery was available on the online court tracking system , and that the Applicant, being an auctioneer conversant with court processes, cannot feign ignorance. He contends that the delay of nearly four months is inordinate and inexcusable, and that the Respondents continue to suffer prejudice by being denied the fruits of a taxed bill of costs.
Issues for Determination
The sole issue for determination is whether the Applicant has demonstrated good and sufficient cause to warrant extension of time to file an appeal out of time against the ruling of 30 th April 2025 .
Applicable Law
Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court shall be filed within thirty (30) days of the decree or order appealed against, “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 guiding principles are settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 , the Court of Appeal held that in deciding whether to extend time, the court should consider: The length of delay
The reason for the delay
The chances of the appeal succeeding if time is extended
The degree of prejudice to the respondent/s.
Analysis
(a) Length and Reason for Delay
The ruling sought to be appealed was delivered on 30 th April 2025, while this application was filed on 19 th August 2025 , approximately four months later. The delay is not trivial and must therefore be satisfactorily explained.
The Applicant attributes the delay to two reasons: That the ruling was delivered without notice, and he was therefore unaware of it within time; and
That he only later obtained legal advice clarifying that the board of management is a distinct legal entity capable of being sued and of satisfying decrees.
On the first point, the Court notes that the Applicant has merely asserted that the ruling was delivered without notice. He has not exhibited any letter to the registry, correspondence, or follow-up to demonstrate efforts to ascertain the status of the matter after the hearing of the application.
More importantly, there is no evidence on record that the date for delivery of the ruling was taken in the absence of the Applicant or his advocate . In the absence of such evidence, the Applicant cannot validly claim that he was unaware of the ruling . A diligent litigant is expected to make periodic inquiries on a matter pending judgment or ruling, particularly where no fixed date was given, if at all.
A bare allegation of lack of notice, without any proof of diligence or record of follow-up, does not amount to good and sufficient cause . The Applicant has not disputed that the ruling date was posted on the online case tracking system. As an auctioneer accustomed to handling execution proceedings, the Applicant was expected to exercise reasonable vigilance to follow up the outcome of a matter in which he was directly interested.
On the second reason, a subsequent clarification of the law or alleged misunderstanding of the legal position cannot excuse non-compliance with statutory timelines.
In Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, Waki JA adopted with approval the holding of this Court in Rajesh Rughani – Vs- Fifty Investment Ltd. & Another (2005) eKLR that:
“If the Advocate was simply guilty of inaction that is not excusable mistake which the Court may consider with some sympathy”.
That holding applies to the circumstances at hand. Clearly, the delay in this case has not been sufficiently explained; in fact, it has not been explained at all, and in view of that, the applicant has failed to place any material before me that warrants the exercise of my discretion in his favour. The application for extension of time is therefore rejected.
(b) Arguability of the Intended Appeal
The draft memorandum of appeal annexed to the application raises the issue whether a Board of Management under the Basic Education Act is a body corporate capable of being sued and subjected to execution. That issue, though arguable, cannot by itself cure an unexplained delay. The existence of an arguable appeal does not obviate the need to first establish sufficient cause for non-compliance with section 79G.
(c) Prejudice
The Respondents have demonstrated that continued delay denies them the fruits of a taxed bill of costs, while the Applicant’s prejudice is self-induced. The balance of prejudice, therefore, favours the Respondents.
Conclusion
In the end, the Applicant has failed to satisfy this Court that there exists good and sufficient cause for not filing the appeal within the statutory time. The explanation that the ruling was delivered without notice is unsupported and unpersuasive . The subsequent misunderstanding of the law equally does not constitute a valid reason for the delay.
The discretion under section 79G of the Civil Procedure Act is intended to advance justice but not to assist a party who has been indolent. The Applicant’s conduct betrays a lack of diligence, and to grant the orders sought would offend the principle of finality in litigation.
Consequently, the application dated 19 th August 2025 is dismissed with costs to the Respondents.
This being a miscellaneous file, it is hereby closed
Court Assistant - Hilda
For Appellants - Mr. Nyambati for G.M.Nyambati & Co. Advocates
For Respondents - Ms. Osebe for Respondents
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The Applicant, Jimmy Omwenga Nyakagwa t/a Fortunes Auctioneers , has moved this Court by a Notice of Motion dated 19 th August 2025, seeking leave to file an appeal out of time against the ruling delivered on 30 th April 2025 in Keroka Misc. Application No. E005 of 2023 .
The application is supported by the Applicant’s affidavit sworn on the same date. He avers that he was the auctioneer in Keroka CMCC No. E026 of 2022, where he attached movable property belonging to the 2 nd Respondent. The subordinate court, upon objection proceedings, found that execution could not issue against the Respondents, being a public educational institution. The Applicant now seeks leave to appeal out of time, contending that the trial court erred in law by treating the Respondents as immune from execution.
The Applicant asserts that the ruling of 30 th April 2025 was delivered without notice, and consequently, he was unaware of it within the statutory appeal period. He further avers that the delay in filing the appeal was occasioned by a misapprehension of the legal position regarding the corporate capacity of Boards of Management, which was only clarified to him later by counsel. He maintains that the intended appeal raises substantial and arguable points of law and that no prejudice would be suffered by the Respondents if leave is granted.
The application is opposed through a Replying Affidavit sworn on 19 th August 2025 by Charles Mitanya Sese , the Principal of the 1 st Respondent and Secretary to the 2 nd Respondent’s Board of Management. He depones that the application is incompetent, misconceived, and an abuse of the court process. He asserts that the date of delivery was available on the online court tracking system , and that the Applicant, being an auctioneer conversant with court processes, cannot feign ignorance. He contends that the delay of nearly four months is inordinate and inexcusable, and that the Respondents continue to suffer prejudice by being denied the fruits of a taxed bill of costs.
Issues for Determination
The sole issue for determination is whether the Applicant has demonstrated good and sufficient cause to warrant extension of time to file an appeal out of time against the ruling of 30 th April 2025 .
Applicable Law
Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court shall be filed within thirty (30) days of the decree or order appealed against, “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 guiding principles are settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 , the Court of Appeal held that in deciding whether to extend time, the court should consider: The length of delay
The reason for the delay
The chances of the appeal succeeding if time is extended
The degree of prejudice to the respondent/s.
Analysis
(a) Length and Reason for Delay
The ruling sought to be appealed was delivered on 30 th April 2025, while this application was filed on 19 th August 2025 , approximately four months later. The delay is not trivial and must therefore be satisfactorily explained.
The Applicant attributes the delay to two reasons: That the ruling was delivered without notice, and he was therefore unaware of it within time; and
That he only later obtained legal advice clarifying that the board of management is a distinct legal entity capable of being sued and of satisfying decrees.
On the first point, the Court notes that the Applicant has merely asserted that the ruling was delivered without notice. He has not exhibited any letter to the registry, correspondence, or follow-up to demonstrate efforts to ascertain the status of the matter after the hearing of the application.
More importantly, there is no evidence on record that the date for delivery of the ruling was taken in the absence of the Applicant or his advocate . In the absence of such evidence, the Applicant cannot validly claim that he was unaware of the ruling . A diligent litigant is expected to make periodic inquiries on a matter pending judgment or ruling, particularly where no fixed date was given, if at all.
A bare allegation of lack of notice, without any proof of diligence or record of follow-up, does not amount to good and sufficient cause . The Applicant has not disputed that the ruling date was posted on the online case tracking system. As an auctioneer accustomed to handling execution proceedings, the Applicant was expected to exercise reasonable vigilance to follow up the outcome of a matter in which he was directly interested.
On the second reason, a subsequent clarification of the law or alleged misunderstanding of the legal position cannot excuse non-compliance with statutory timelines.
In Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, Waki JA adopted with approval the holding of this Court in Rajesh Rughani – Vs- Fifty Investment Ltd. & Another (2005) eKLR that:
“If the Advocate was simply guilty of inaction that is not excusable mistake which the Court may consider with some sympathy”.
That holding applies to the circumstances at hand. Clearly, the delay in this case has not been sufficiently explained; in fact, it has not been explained at all, and in view of that, the applicant has failed to place any material before me that warrants the exercise of my discretion in his favour. The application for extension of time is therefore rejected.
(b) Arguability of the Intended Appeal
The draft memorandum of appeal annexed to the application raises the issue whether a Board of Management under the Basic Education Act is a body corporate capable of being sued and subjected to execution. That issue, though arguable, cannot by itself cure an unexplained delay. The existence of an arguable appeal does not obviate the need to first establish sufficient cause for non-compliance with section 79G.
(c) Prejudice
The Respondents have demonstrated that continued delay denies them the fruits of a taxed bill of costs, while the Applicant’s prejudice is self-induced. The balance of prejudice, therefore, favours the Respondents.
Conclusion
In the end, the Applicant has failed to satisfy this Court that there exists good and sufficient cause for not filing the appeal within the statutory time. The explanation that the ruling was delivered without notice is unsupported and unpersuasive . The subsequent misunderstanding of the law equally does not constitute a valid reason for the delay.
The discretion under section 79G of the Civil Procedure Act is intended to advance justice but not to assist a party who has been indolent. The Applicant’s conduct betrays a lack of diligence, and to grant the orders sought would offend the principle of finality in litigation.
Consequently, the application dated 19 th August 2025 is dismissed with costs to the Respondents.
This being a miscellaneous file, it is hereby closed
Court Assistant - Hilda
For Appellants - Mr. Nyambati for G.M.Nyambati & Co. Advocates
For Respondents - Ms. Osebe for Respondents
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