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JUDGMENT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEALS DIVISION
KITUI LAW COURTS
CIVIL APPEAL NO. E063 OF 2025
JOSEPH MUNYWOKI MALUU …………...……….. APPELLANT/APPLICANT
VERSUS
GRACE MBUVE KALUKU ……………………….………..……. RESPONDENT
RULING
1. The ruling relates to a Notice of Motion which is brought under Section 79G and 3A of the Civil Procedure Act. The appellant seeks leave to appeal out of time from the ruling delivered in Kitui CMCC E334/2022 Grace Mbuve Kaluku T/A Gruveka Investments –v- Joseph Munywoki Maluu on 11/6/2025.
2. That the court be pleased to extend the time for filing of the appeal so that this Civil Appeal No. E063/2025 which is already filed is hereby deemed to be filed and served.
3. That the costs to abide the outcome of the appeal. The motion is based on the grounds that the delay is not inordinate. The appellant has been consistent in showing dissatisfaction with the decision of the lower court. It is also contended that the respondent filed the case against the applicant and in return the applicant filed an application
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to join an interested party who is a central and relevant party to the suit. The lower court in its ruling on 11/6/2025 dismissed the applicant’s application.
4. The applicant contends that a week before the delivery of the ruling he was taken ill and could not be reached to give instructions to file appeal. That the said impugned ruling barred the applicant from enjoining fraudsters based in Kitale who defrauded him money belonging to the respondent herein in a business transaction. That the process of tracking transactions caused him money and affected his health.
5. The applicant submits that unless the application is granted, he is likely to suffer irreparably.
6. The application is supported by the affidavit of the applicant sworn on 24/10/2025,
7. The respondent opposed the application and filed a replying affidavit sworn by Grace Mbuve Kaluku t/a Gruveka Investments. She avers that the applicant had committed to refund the entire sum but has only refunded Ksh.1,270,000/= only leaving a balance of Ksh.1,470,000/=.
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8. That at all material times he only dealt with the applicant and not the proposed third party. She further contends that the application is only meant to delay the determination of the case.
9. The application was canvassed by way of written submissions. However I did not come across any submissions by any of the parties. I will however proceed as the application is on points of law.
10. I have considered the application. Section 79 G of the Civil Procedure Act provides that –
“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period any time which the lower court may testify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order”.
11. Provided that an appeal may be admitted out of time if the applicant satisfies the court that he had a good and sufficient cause for not filing the appeal in time”. This provision gives court discretion to allow a party who shows sufficient cause or a good reason for the delay in filing the appeal within the prescribed time.
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12. The applicant should therefore file an application and supporting evidence to explain the delay. The court is then supposed to consider whether to exercise discretion in favour of the applicant if the delay is explained to the satisfaction of the court.
14. In the case of Adara –v- Gova 2025 KEHC 1462 (KLR) the court stated that in the exercise of its discretion, the court has to consider the length of the delay, reasons for the delay, the chances of appeal succeeding, whether the respondent is likely to suffer any prejudice.
15. It is also trite that the party should file a draft of the petition or the memorandum of appeal.
16. The applicant has contended that sometimes before the ruling was delivered, he was taken ill and was not available to instruct his advocate to appeal.
17. I have looked at the documents and they indeed show that the applicant was taken ill for sometime. Leave to appeal out of time as I have stated is a matter of the exercise of court’s discretion.
18. Article 159 (2) (d) of the Constitution stipulates that justice should be done without undue regard to technicalities. It states:
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“In exercising judicial authority, the courts and tribunals shall be guided by the following principles:
(d) Justice shall be administered without undue regard to procedural technicalities…..”.
19. An application seeking extension of time to file an appeal is a procedural technicality. Article 50 of the Constitution provides that –
“Every person has the right to have any dispute that can be resolved by the application of the law, decided in a fair and public hearing before a court or, if appropriate another independent and impartial Tribunal or body”.
20. The Constitution further gives a party the right to access justice. This court exercises supervisory jurisdiction over the subordinate courts as provided under Article 165 (6) of the Constitution. The High Court should therefore not deny a party the right to access justice and to appeal against the orders of the subordinate courts.
21. The court is called upon to exercise its discretion fairly and in a manner that does not amount to denying it the right to appeal.
22. I have considered the response by the respondent who contends that the applicant had committed himself to pay the debt and that
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he is out to delay the conclusion of this matter. I find that the appeal may be expedited and therefore the issue of delay does not arise. I also note that the appeal was filed on 7/8/2025 and the impugned ruling was delivered on 11/6/2025. The delay was not inordinate and the reason for delay has been satisfactorily explained as sickness was something beyond his control.
23. For these reasons I should exercise discretion and allow the applicant to file appeal out of time.
Dispositions
1) The application is allowed.
2) The applicant is granted leave to appeal out of time.
3) The appeal be filed and served within seven (7) days.
4) Upon filing, the matter shall be mentioned before the Deputy Registrar to call for the lower court records and place the file before the judge for admission of the appeal.
5) Costs to abide the outcome of the appeal.
Mention before the Deputy Registrar on 6/5/2026.
LUCY GITARI – JUDGE
JUDGMENT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL APPEALS DIVISION
KITUI LAW COURTS
CIVIL APPEAL NO. E063 OF 2025
JOSEPH MUNYWOKI MALUU …………...……….. APPELLANT/APPLICANT
VERSUS
GRACE MBUVE KALUKU ……………………….………..……. RESPONDENT
RULING
1. The ruling relates to a Notice of Motion which is brought under Section 79G and 3A of the Civil Procedure Act. The appellant seeks leave to appeal out of time from the ruling delivered in Kitui CMCC E334/2022 Grace Mbuve Kaluku T/A Gruveka Investments –v- Joseph Munywoki Maluu on 11/6/2025.
2. That the court be pleased to extend the time for filing of the appeal so that this Civil Appeal No. E063/2025 which is already filed is hereby deemed to be filed and served.
3. That the costs to abide the outcome of the appeal. The motion is based on the grounds that the delay is not inordinate. The appellant has been consistent in showing dissatisfaction with the decision of the lower court. It is also contended that the respondent filed the case against the applicant and in return the applicant filed an application
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to join an interested party who is a central and relevant party to the suit. The lower court in its ruling on 11/6/2025 dismissed the applicant’s application.
4. The applicant contends that a week before the delivery of the ruling he was taken ill and could not be reached to give instructions to file appeal. That the said impugned ruling barred the applicant from enjoining fraudsters based in Kitale who defrauded him money belonging to the respondent herein in a business transaction. That the process of tracking transactions caused him money and affected his health.
5. The applicant submits that unless the application is granted, he is likely to suffer irreparably.
6. The application is supported by the affidavit of the applicant sworn on 24/10/2025,
7. The respondent opposed the application and filed a replying affidavit sworn by Grace Mbuve Kaluku t/a Gruveka Investments. She avers that the applicant had committed to refund the entire sum but has only refunded Ksh.1,270,000/= only leaving a balance of Ksh.1,470,000/=.
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8. That at all material times he only dealt with the applicant and not the proposed third party. She further contends that the application is only meant to delay the determination of the case.
9. The application was canvassed by way of written submissions. However I did not come across any submissions by any of the parties. I will however proceed as the application is on points of law.
10. I have considered the application. Section 79 G of the Civil Procedure Act provides that –
“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period any time which the lower court may testify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order”.
11. Provided that an appeal may be admitted out of time if the applicant satisfies the court that he had a good and sufficient cause for not filing the appeal in time”. This provision gives court discretion to allow a party who shows sufficient cause or a good reason for the delay in filing the appeal within the prescribed time.
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12. The applicant should therefore file an application and supporting evidence to explain the delay. The court is then supposed to consider whether to exercise discretion in favour of the applicant if the delay is explained to the satisfaction of the court.
14. In the case of Adara –v- Gova 2025 KEHC 1462 (KLR) the court stated that in the exercise of its discretion, the court has to consider the length of the delay, reasons for the delay, the chances of appeal succeeding, whether the respondent is likely to suffer any prejudice.
15. It is also trite that the party should file a draft of the petition or the memorandum of appeal.
16. The applicant has contended that sometimes before the ruling was delivered, he was taken ill and was not available to instruct his advocate to appeal.
17. I have looked at the documents and they indeed show that the applicant was taken ill for sometime. Leave to appeal out of time as I have stated is a matter of the exercise of court’s discretion.
18. Article 159 (2) (d) of the Constitution stipulates that justice should be done without undue regard to technicalities. It states:
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JUDGMENT
“In exercising judicial authority, the courts and tribunals shall be guided by the following principles:
(d) Justice shall be administered without undue regard to procedural technicalities…..”.
19. An application seeking extension of time to file an appeal is a procedural technicality. Article 50 of the Constitution provides that –
“Every person has the right to have any dispute that can be resolved by the application of the law, decided in a fair and public hearing before a court or, if appropriate another independent and impartial Tribunal or body”.
20. The Constitution further gives a party the right to access justice. This court exercises supervisory jurisdiction over the subordinate courts as provided under Article 165 (6) of the Constitution. The High Court should therefore not deny a party the right to access justice and to appeal against the orders of the subordinate courts.
21. The court is called upon to exercise its discretion fairly and in a manner that does not amount to denying it the right to appeal.
22. I have considered the response by the respondent who contends that the applicant had committed himself to pay the debt and that
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he is out to delay the conclusion of this matter. I find that the appeal may be expedited and therefore the issue of delay does not arise. I also note that the appeal was filed on 7/8/2025 and the impugned ruling was delivered on 11/6/2025. The delay was not inordinate and the reason for delay has been satisfactorily explained as sickness was something beyond his control.
23. For these reasons I should exercise discretion and allow the applicant to file appeal out of time.
Dispositions
1) The application is allowed.
2) The applicant is granted leave to appeal out of time.
3) The appeal be filed and served within seven (7) days.
4) Upon filing, the matter shall be mentioned before the Deputy Registrar to call for the lower court records and place the file before the judge for admission of the appeal.
5) Costs to abide the outcome of the appeal.
Mention before the Deputy Registrar on 6/5/2026.
LUCY GITARI – JUDGE