1. The Plaintiff has moved the court by the Notice of Motion dated 03.07.2023 made under sections 1A, 1B, 3A of the Civil Procedure Act, Order 50 and 51 of the Civil Procedure Rules and Articles 48, 50 and 159 of the Constitution in which he seeks leave to file an appeal against the court’s ruling dated 15.05.2023 out of time. The application is supported by the grounds on its face and the affidavit of Dr. Duncan Okubasu, an advocate, sworn on 03.07.2023. The Defendants have opposed the application through the Grounds of Objection dated 30.10.2023 and the replying affidavit of the 1st Defendant’s Legal Officer, Sekou Owino sworn on the same date.
2. The Plaintiff’s advocate depones that after the court (Visram J.) delivered the ruling that dismissed his application to reinstate the suit, he sought and was granted leave to appeal against the ruling. He states that he filed a notice of appeal through the Judiciary Portal on the 18.05.2023 and paid for it in addition to payment for typed proceedings, ruling and order. When he proceeded to collect the Notice of Appeal from the Court Registry, he was informed had payment of the Notice of Appeal had not reflected on the Court’s interface. He avers that as a result, he paid again for the Notice of Appeal once again and requested for typed proceedings.
3. The Plaintiff states that the Notice of Appeal was lodged within time; to wit on 18.05.2023 and payment made for the same. He contends that unless this application is allowed and leave is granted to file the Notice of Appeal out of time, the Plaintiff will be deprived of his right to a fair hearing and shut from the seat of justice and that it is only fair and in the interest of justice and equity that the application is allowed.
4. The Defendants oppose the application and urge the court to dismiss it on that that the Plaintiff has failed to give any or any sufficient reasons for the court to exercise discretion in his favour and that he has not come to court with clean hands. The Defendants aver that according to the e-filing system, the Plaintiff made two requests on 18.05.2023 requesting for proceedings and the Notice of Appeal wherein the system generated two invoices of Kshs. 2,500.00 and Kshs. 450.00 respectively but that Plaintiff has not furnished any proof that he has made any payments against the said invoices as alleged. According to the Defendants, the Plaintiff paid for the Notice of Appeal on 23.06.2023 and served it on that they were served with the same on 14.06.2023 hence the application has been brought in bad faith.
5. The High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act (Chapter 9 of the Laws of Kenya) to, “extend the time for giving notice of intention to appeal from a judgment of the High Court ….. notwithstanding that the time for giving such notice or making such appeal may have already expired….” The jurisdiction to grant an order for extension of time is unfettered and lie any jurisdiction must be exercised judiciously. In Mutiso v Mwangi [1997] KLR 630, considering the similar Rule 4 of the Court of Appeal Rules governing extension of time set out some the factor the court may consider as follows:
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 generally the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.
6. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time by stating as follows:
The underlying principles a court should consider in exercise of such discretion include;
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5. Whether there will be any prejudice suffered by the Respondent if the extension is granted;
6. Whether the application has been brought without undue delay.
7. ......”
7. I have considered the facts placed before the court seeking extension of time. There is no doubt that that the Notice of Appeal was filed within time and the portal shows that the filing fee was indeed paid on It is common cause that the court delivering the Ruling on 15.05.2023. From the Plaintiff’s deposition, it made applications 3 days later which payments he claims were not received or acknowledged by the Judiciary’s registry. The Plaintiff has further deponed that that he made further payments which from his supporting documents indicate that the Notice of Appeal was paid for on 23.06.2023 meaning he filed the appeal on that day, which filing was 8 days late. This application was filed on 03.07.2023, close to one month and 18 days from the date of delivery of the ruling, which delay is in my view, not inordinate. As to the reason for the delay, I note that the Plaintiff’s averment that the Judiciary did not receive the initial payment made on 18.05.2023 is not substantiated but I note that the delay in making payments on 22.05.2023 and 23.06.2023 in respect of the request for proceedings and Notice of Appeal respectively were not inordinate. I also consider that it is in the interests of justice that the Plaintiff be given an opportunity to ventilate his appeal.
8. In the foregoing, I allow the Plaintiff’s application dated 03.07.2023 on terms that leave be and is hereby granted to the Plaintiff to file an appeal out of time from the ruling and order dated 15.05.2023 and the Notice of Appeal dated 17.05.2023 be and is hereby deemed as properly filed. The Plaintiff shall bear costs of the application.
DATED and DELIVERED at NAIROBI this 8TH day of DECEMBER 2023.
D. S. MAJANJA
JUDGE
2. The Plaintiff’s advocate depones that after the court (Visram J.) delivered the ruling that dismissed his application to reinstate the suit, he sought and was granted leave to appeal against the ruling. He states that he filed a notice of appeal through the Judiciary Portal on the 18.05.2023 and paid for it in addition to payment for typed proceedings, ruling and order. When he proceeded to collect the Notice of Appeal from the Court Registry, he was informed had payment of the Notice of Appeal had not reflected on the Court’s interface. He avers that as a result, he paid again for the Notice of Appeal once again and requested for typed proceedings.
3. The Plaintiff states that the Notice of Appeal was lodged within time; to wit on 18.05.2023 and payment made for the same. He contends that unless this application is allowed and leave is granted to file the Notice of Appeal out of time, the Plaintiff will be deprived of his right to a fair hearing and shut from the seat of justice and that it is only fair and in the interest of justice and equity that the application is allowed.
4. The Defendants oppose the application and urge the court to dismiss it on that that the Plaintiff has failed to give any or any sufficient reasons for the court to exercise discretion in his favour and that he has not come to court with clean hands. The Defendants aver that according to the e-filing system, the Plaintiff made two requests on 18.05.2023 requesting for proceedings and the Notice of Appeal wherein the system generated two invoices of Kshs. 2,500.00 and Kshs. 450.00 respectively but that Plaintiff has not furnished any proof that he has made any payments against the said invoices as alleged. According to the Defendants, the Plaintiff paid for the Notice of Appeal on 23.06.2023 and served it on that they were served with the same on 14.06.2023 hence the application has been brought in bad faith.
5. The High Court has jurisdiction under section 7 of the Appellate Jurisdiction Act (Chapter 9 of the Laws of Kenya) to, “extend the time for giving notice of intention to appeal from a judgment of the High Court ….. notwithstanding that the time for giving such notice or making such appeal may have already expired….” The jurisdiction to grant an order for extension of time is unfettered and lie any jurisdiction must be exercised judiciously. In Mutiso v Mwangi [1997] KLR 630, considering the similar Rule 4 of the Court of Appeal Rules governing extension of time set out some the factor the court may consider as follows:
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 generally the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.
6. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time by stating as follows:
The underlying principles a court should consider in exercise of such discretion include;
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
5. Whether there will be any prejudice suffered by the Respondent if the extension is granted;
6. Whether the application has been brought without undue delay.
7. ......”
7. I have considered the facts placed before the court seeking extension of time. There is no doubt that that the Notice of Appeal was filed within time and the portal shows that the filing fee was indeed paid on It is common cause that the court delivering the Ruling on 15.05.2023. From the Plaintiff’s deposition, it made applications 3 days later which payments he claims were not received or acknowledged by the Judiciary’s registry. The Plaintiff has further deponed that that he made further payments which from his supporting documents indicate that the Notice of Appeal was paid for on 23.06.2023 meaning he filed the appeal on that day, which filing was 8 days late. This application was filed on 03.07.2023, close to one month and 18 days from the date of delivery of the ruling, which delay is in my view, not inordinate. As to the reason for the delay, I note that the Plaintiff’s averment that the Judiciary did not receive the initial payment made on 18.05.2023 is not substantiated but I note that the delay in making payments on 22.05.2023 and 23.06.2023 in respect of the request for proceedings and Notice of Appeal respectively were not inordinate. I also consider that it is in the interests of justice that the Plaintiff be given an opportunity to ventilate his appeal.
8. In the foregoing, I allow the Plaintiff’s application dated 03.07.2023 on terms that leave be and is hereby granted to the Plaintiff to file an appeal out of time from the ruling and order dated 15.05.2023 and the Notice of Appeal dated 17.05.2023 be and is hereby deemed as properly filed. The Plaintiff shall bear costs of the application.
DATED and DELIVERED at NAIROBI this 8TH day of DECEMBER 2023.
D. S. MAJANJA
JUDGE