R
1. Before this Court is an application dated 23.4.2026 (Under Section 79G of the Civil Procedure Act and any other enabling provisions of law) seeking the Court to extend time for filing appeal and admit the memorandum of appeal out of time against the ruling and order issued by Hon. Martha Agutu (P.M) in Mbita Principal Magistrate’s Court Land Case No. E014 OF 2025 issued on the 11th day of December 2025. That the costs of the application to abide the outcome of the appeal.
2. The Application is based on the ground that the applicant is aggrieved by the ruling delivered on 11th December 2025 and the subsequent order issued on 22nd December 2025. He further avers that the impugned decision has far reaching consequences substantially affecting the Applicant’s rights and occupation of his suit property designated as L.R No. Gembe/Waondo/Wasaki/1100 without the benefit of a full hearing.
3. The Applicant further states that after delivery of the ruling, he required time to appreciate the legal implications of the decision and to consult with members of his family before resolving to challenge it. He also explains that, owing to his modest financial circumstances, he needed additional time to mobilize the funds necessary to institute the intended appeal.
4. Despite being served with the application, the respondent did not appear or respond despite service. The application therefore proceeded unopposed.
5. The sole issue for determination is whether the Applicant has established sufficient cause to warrant extension of time to file an appeal out of time.
6. Section 79G of the Civil Procedure Act states: -
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 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.
7. It is evident from the wording of Section 79G of the Civil Procedure Act that before the Court can exercise its discretion to extend time, an applicant must satisfy the Court that there exists good and sufficient cause for the failure to file the appeal within the prescribed period. This principle was affirmed in Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR , where the Court emphasized that an applicant seeking enlargement of time to file an appeal, or the admission of an appeal filed out of time, bears the burden of demonstrating good and sufficient cause for the delay.
8. The Supreme Court, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , laid down the guiding principles governing applications for extension of time to file an appeal out of time. The Court held, inter alia , as follows:
“The underlying principles a court should consider in exercise of such discretion should include: -
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.
9. Equally, in the case of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR , the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following: -
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
10. Applying the above principles to the present case, the ruling sought to be appealed against was delivered on 11th December 2025, while the present application was filed on 23rd April 2026, approximately four months later. The delay is therefore not immaterial and calls for a satisfactory explanation.
11. The Applicant attributes the delay to the need to consider the implications of the decision, consult with family members and mobilize financial resources to pursue the appeal. Although these reasons may not, standing alone, constitute compelling grounds in every case, the Court is mindful that access to justice should not be defeated by procedural technicalities where no prejudice is demonstrated. The explanation offered is reasonable and has not been challenged by the Respondent.
12. The Respondent neither opposed the application nor established any prejudice that would be caused if leave is granted. On the other hand, refusal of leave would permanently shut out the Applicant from exercising his statutory right of appeal, particularly in a matter touching on ownership and occupation of land.
13. Without digging into the merits of the intended appeal, as doing so would prejudice its eventual determination, the draft Memorandum of Appeal annexed to the application raises issues that cannot be said to be frivolous. It is sufficient at this stage that the intended appeal is arguable and deserves examination by the appellate court.
14. Guided by the constitutional requirements under Articles 48 and 50 of the Constitution on access to justice and fair hearing, and bearing in mind that the discretion under Section 79G should be exercised to advance substantive justice, I am persuaded that this is an appropriate case in which to extend time.
15. Thus, the Notice of Motion dated 23rd April 2026 is allowed in the following terms
a)The Applicant is granted 14 days to file and serve the Memorandum of Appeal
b) Thereafter the Appellant shall have Seven(7) days to file and serve the Record of Appeal
C) Costs shall be in the cause and shall abide the outcome of the Appeal
d) File is closed
Ruling dated and delivered virtually via teams online platform at Homabay on the 15 th day of July ,2026
In the presence of;
1. Oyala for the Applicant
2. Namude for the Respondent
3. . C/A Bosibori .
JOHN WALTER WANYONYI
JUDGE
15. 07.2026
1. Before this Court is an application dated 23.4.2026 (Under Section 79G of the Civil Procedure Act and any other enabling provisions of law) seeking the Court to extend time for filing appeal and admit the memorandum of appeal out of time against the ruling and order issued by Hon. Martha Agutu (P.M) in Mbita Principal Magistrate’s Court Land Case No. E014 OF 2025 issued on the 11th day of December 2025. That the costs of the application to abide the outcome of the appeal.
2. The Application is based on the ground that the applicant is aggrieved by the ruling delivered on 11th December 2025 and the subsequent order issued on 22nd December 2025. He further avers that the impugned decision has far reaching consequences substantially affecting the Applicant’s rights and occupation of his suit property designated as L.R No. Gembe/Waondo/Wasaki/1100 without the benefit of a full hearing.
3. The Applicant further states that after delivery of the ruling, he required time to appreciate the legal implications of the decision and to consult with members of his family before resolving to challenge it. He also explains that, owing to his modest financial circumstances, he needed additional time to mobilize the funds necessary to institute the intended appeal.
4. Despite being served with the application, the respondent did not appear or respond despite service. The application therefore proceeded unopposed.
5. The sole issue for determination is whether the Applicant has established sufficient cause to warrant extension of time to file an appeal out of time.
6. Section 79G of the Civil Procedure Act states: -
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 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.
7. It is evident from the wording of Section 79G of the Civil Procedure Act that before the Court can exercise its discretion to extend time, an applicant must satisfy the Court that there exists good and sufficient cause for the failure to file the appeal within the prescribed period. This principle was affirmed in Diplack Kenya Limited v William Muthama Kitonyi [2018] eKLR , where the Court emphasized that an applicant seeking enlargement of time to file an appeal, or the admission of an appeal filed out of time, bears the burden of demonstrating good and sufficient cause for the delay.
8. The Supreme Court, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR , laid down the guiding principles governing applications for extension of time to file an appeal out of time. The Court held, inter alia , as follows:
“The underlying principles a court should consider in exercise of such discretion should include: -
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.
9. Equally, in the case of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR , the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following: -
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
10. Applying the above principles to the present case, the ruling sought to be appealed against was delivered on 11th December 2025, while the present application was filed on 23rd April 2026, approximately four months later. The delay is therefore not immaterial and calls for a satisfactory explanation.
11. The Applicant attributes the delay to the need to consider the implications of the decision, consult with family members and mobilize financial resources to pursue the appeal. Although these reasons may not, standing alone, constitute compelling grounds in every case, the Court is mindful that access to justice should not be defeated by procedural technicalities where no prejudice is demonstrated. The explanation offered is reasonable and has not been challenged by the Respondent.
12. The Respondent neither opposed the application nor established any prejudice that would be caused if leave is granted. On the other hand, refusal of leave would permanently shut out the Applicant from exercising his statutory right of appeal, particularly in a matter touching on ownership and occupation of land.
13. Without digging into the merits of the intended appeal, as doing so would prejudice its eventual determination, the draft Memorandum of Appeal annexed to the application raises issues that cannot be said to be frivolous. It is sufficient at this stage that the intended appeal is arguable and deserves examination by the appellate court.
14. Guided by the constitutional requirements under Articles 48 and 50 of the Constitution on access to justice and fair hearing, and bearing in mind that the discretion under Section 79G should be exercised to advance substantive justice, I am persuaded that this is an appropriate case in which to extend time.
15. Thus, the Notice of Motion dated 23rd April 2026 is allowed in the following terms
a)The Applicant is granted 14 days to file and serve the Memorandum of Appeal
b) Thereafter the Appellant shall have Seven(7) days to file and serve the Record of Appeal
C) Costs shall be in the cause and shall abide the outcome of the Appeal
d) File is closed
Ruling dated and delivered virtually via teams online platform at Homabay on the 15 th day of July ,2026
In the presence of;
1. Oyala for the Applicant
2. Namude for the Respondent
3. . C/A Bosibori .
JOHN WALTER WANYONYI
JUDGE
15. 07.2026