Introduction
1. Vide a notice of motion application dated 26th June, 2025 the applicant herein seeks an order for extension of time to appeal the judgement of the lower court delivered in Kabarnet CM ELC E10 of 2020 on 8th May, 2025.
2. The application is premised on the grounds on its face and supported by the affidavit of the applicant, sworn on 26th June, 2025 in which he deposes that the delay to file the intended appeal was occasioned by failure by the court to issue him with certified copies of judgement and proceedings and technical challenges experienced while trying to file the memorandum of appeal through the e- filing platform.
3. The application is opposed by the 1st respondent vide a replying affidavit sworn by Vincent Kiptoon on 29th September, 2025 that the application is an abuse of the court process; that judgement was delivered in the presence of the parties and the explanation given by the applicant is vague and unsubstantiated with no support of evidence why the appeal was not lodged within the prescribed period.
4. The application was argued orally on 16th October, 2025. Counsels for the parties basically reiterated the grounds taken up in support and opposition for the application.
Analysis and determination
5. This court has discretionary power to grant leave to file an appeal out of time. That power is granted by Section 79G of the Civil Procedure Act. In that regard, see the case of Edward Kamau & Another vs. Hannah Mukui Gichuki & Another where it was stated: -
“On whether this court should grant extension of time for filing an appeal, the applicable law is section 79G of the Civil Procedure Act…
Under the proviso to the said section 79G of the Civil Procedure Act, an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.”
The court further stated: -
“The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 laid down the following as the underlying principles that a court should consider in exercise of discretion to extent time: -
i. Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
ii. The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
iii. As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
iv. Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court;
v. Whether there will be any prejudice to be suffered by the respondents if the extension is granted;
vi. The application should have been brought without undue delay; and
vii. In certain cases, like election petitions, public interest should be a consideration for extending time.”
6. In the instant application, I have read and considered the explanation offered by the applicant for his failure to file the intended appeal within the stipulated time, being failure by the court to issue him with certified copies of judgement and proceedings and technical challenges experienced while trying to file the memorandum of appeal through the e- filing platform. I note that the applicant has not demonstrated that he applied to the lower court to be supplied with the judgment and certified copies of the court’s proceedings nor has he provided any evidence showing the difficulty experienced in attempting to file the memorandum of appeal through the e-filing platform. In absence of evidence of any effort made by the applicant to obtain the documents required to file the intended appeal, I agree with the respondents that the decision by the applicant to appeal against the judgment of the lower court was but an afterthought.
7. Although the delay of four months or thereabout is not so inordinate that it would, inappropriate circumstances, preclude exercise of this court’s discretionary power to extend time to file an appeal, that power can only be exercised in favour of the applicant if he demonstrates that he was prevented from filing the intended appeal by factors beyond his control and not otherwise.
8. Having determined that no reasonable explanation has been offered by the applicant for the delay in filing his intended appeal, I decline to exercise the discretionary power vested in this court in favour of the applicant.
9. The upshot of the foregoing is that the application dated 26th June, 2025 has no merit. Consequently, I dismiss it with costs to the respondents.
10. Orders accordingly.
Ruling dated, signed and delivered virtually at Kabarnet this 16 th day of December, 2025.
ln the presence of:-
Ms. Kiprop h/b for Ms. Ndenda for the Applicant
Mr Kiptoon for the 1st Respondent
N/A for 2-31st Respondents
Court Assistant: lan