1. Before the Court is an application brought under Notice of Motion dated 26th February 2025, seeking the following orders:-
1) THAT the Honourable Court be pleased to grant the Applicant leave to lodge an Appeal against the Judgment and Decree in Mukurwe-ini ELC Case No.18 of 2019 delivered on 16th May 2023 out of time.
2) Spent.
3) THAT this Honourable Court be pleased to order a stay of execution of the Decree in Mukurwe-ini ELC Case No.18 of 2019 on 8th August 2023.
4) THAT the costs of this application be in the cause.
2. The application is supported by the affidavit of the Applicant and the judgment before the trial court in Mukurwe-ini ELC No.18 of 2019 delivered on 16th May 2023, which dismissed his suit and found in favour of the Respondents. The Applicant now desires to appeal against the Judgment and Decree, but he is out of time.
3. The Applicant deposed that the intended Appeal raises pertinent issues of fact and law that prop an arguable Appeal. He stated that the delay in filing the application was not unreasonable or undue and is explicable.
4. The explanation for the delay is that he only got to know of the Judgment when the Respondents recently fenced the suit land. He claims that there are permanent structures/houses on the suit land which risk being demolished by the Respondents without notice.
5. The Applicant confirmed that his co-defendants in the suit are all deceased and thus he is making this application in all their interests.
6. The Applicant deposed that the delay in filing this application is not inordinate and is excusable.
The 1st Respondent''s Replying Affidavit.
7. The 1st Respondent swore a Replying Affidavit on 31st March 2025, in response to the instant application. She deposed that the suit land, LR Muhito/Muyu/556, is registered in the joint names of herself and the 2nd Respondent (deceased) and was previously owned by her late father, Gatundu S/o Mugo. She, together with others, was appointed Administrator of the estate of their father in Succession Cause No.53 of 2007. She stated that the Defendants before the trial court protested the mode of distribution in Nyeri HC Succession No.53 of 2007, which protest was dismissed, and a Certificate of Confirmation of Grant was issued on 7th May 2010.
8. She deponed that the Applicant did not appeal the decision in the Succession Cause in time, prompting him to seek leave of the court to enlarge the time within which to file the appeal and a stay of execution. Once he obtained orders of stay, the Applicant failed to prosecute the intended appeal, and the Respondent then moved the court to vacate the said stay orders and the same were duly vacated.
9. The Respondents herein filed Mukurwe-ini Magistrate''s Court Land Case No.18 of 2019, before the trial court, where Judgment was delivered in their favour. One of the Respondents in the Succession Case, Francis Kibue Wambugu, passed away, and on 8th November 2024, the Applicant herein tried to forcefully bury his remains on the suit land. This prompted the Respondents to file MCELC No.E014 of 2024 at Mukurwe-ini Magistrates Court, to obtain a temporary injunction stopping the said burial. The injunction was granted, the Deceased was buried on another land, and the suit MCELC E014 of 2024 was withdrawn.
10. According to the 1st Respondent, the Judgment delivered by the trial court on 16th May 2023 was fully executed, and there is nothing to stay other than the order for costs. She denies that there are any permanent structures/houses on the land which risk being demolished.
11. The 1st Respondent deposed that the Applicant has been indolent and guilty of laches since the Judgment he wishes to appeal was delivered on 16th May 2023. She noted that no letter requesting typed proceedings has been attached with the payment receipts from the court to demonstrate that the Applicant is desirous of pursuing the intended appeal. She stated that she stands to suffer great prejudice if the orders sought are granted.
The Applicant’s Written Submissions
12. Counsel for the Applicant quoted Section 79G of the Civil Procedure Act, which provides for 30 days for filing an appeal from a subordinate court to the High Court. The provision states that an appeal may be admitted out of time if there was good and sufficient cause for not filing the appeal in time.
13. The Applicant’s submission is that the Respondents did not serve him with a notice of entry of judgment and/or decree. It was only at the point of execution that the Applicant knew of the existence of the final orders of the court.
14. The Applicant submits that the Decree must first be regularly and procedurally obtained and served upon the judgment-debtor before any execution can issue. She relied on the authorities in the cases of: Gatumuta v. Kenya Power & Lighting Co. Ltd (Civil Appeal 19 of 2017) (2023) KEHC 249 (KRL) and Samuel Mwaura Muthumbi Vs. Josephine Wanjiru Ngugi & Another (2018) eKLR.
15. Counsel also relied on the factors that aid the court in exercising its discretion on whether to file an appeal out of time, as was given in the case of Thuita Mwangi v. Kenya Airways Ltd (2003)eKLR.
16. The Applicant concluded by submitting that the Appeal has a high chance of success; that the trial court did not consider the fact that they had lived in the subject land for close to 50 years. He added that no prejudice will be suffered by the Respondents as they have already demolished houses belonging to the Applicant and other Defendants.
17. Highlighting that the decree in the trial court is dated 13th November 2024 and that the Applicant was only served with the same just recently, it is submitted that the Applicant only knew of the existence of the eviction orders recently.
1st Respondent’s Written Submissions
18. Counsel for the 1st Respondent relied on Section 79G of the Civil Procedure Act and on the authorities of the High Court of Kenya at Malindi Miscellaneous Civil Application No.23 of 2017, Moses Muriithi Njagi Vs. Priscilla Lewa and Nicholas Kiptoo Korir Arap Salat Vs. Independent Electoral & Boundaries Commission & 7 Others (2014) eKLR.
19. They submit that the Applicant is only keen on filing a holding Appeal with a view to delaying the matter further, thus denying the Respondent the fruits of their Judgment. She submitted that the Applicant is yet to apply for copies of the typed proceedings and Judgment to demonstrate that indeed the Applicant is keen on pursuing the Appeal. On this point, counsel relied on the authority of Jolly Muema Kathuka v. Francis Ngao Dominic & Reuben Sila Kitutu (2017) eKLR.
20. It was further submitted by counsel for the 1st Respondent that there is nothing to stay at this point, relying on the holding in the case of Simon Wahome Wachihi Vs. Iriani Tea Factory & 2 Others (2016)eKLR.
21. The 1st Respondent urged the court to dismiss the instant application, submitting that no good and sufficient cause prevented the Appellant from lodging the Appeal in good time.
Analysis and Determination
22. The Application dated 26th February 2025 filed by the Applicant seeks extension of time to lodge an appeal against the Judgment and Decree in the Magistrates'' court at Mukurwe-ini ELC Case 18 of 2019, as well as an order for stay of execution of the said Decree.
23. Section 79G of the Civil Procedure Act provides that:-
“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 to the appellant 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.”
24. Section 95 of the Civil Procedure Act provides that: -
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
25. The Appellant relied on the factors the court can take into account when deciding whether to extend time for appealing, as was given in the Court of Appeal''s authority of Thuita Mwangi v. Kenya Airways Ltd (2003) KECA 201 (KLR). The Learned Judges of Appeal cited the holding in the classic case of Leo Sila Mutiso v. Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (Unreported), where the court held 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 in general the matters which this court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the Respondent if the application is granted.”
26. In the case of Aviation Cargo Support Limited Vs. St. Mark Freight Services Limited (2014) eKLR, the court held that:
“The order whether or not to grant extension of time or leave to file and serve record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. For the court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the application must give plausible explanation to the satisfaction of the court why it occurred and what steps the applicant took to ensure that it came to court as soon as was practicable.”
27. From the foregoing, it is clear that the decision whether or not to extend time to file an appeal is discretionary. The court considers the length of the delay, reason for the delay, the chances of the appeal succeeding and the degree of prejudice to the Respondent if the application is granted. In this case, the Judgment of the Trial Court was delivered on 16th May 2023, in the absence of the parties. This application was filed on 26th February 2025, a delay of about 21 months. In the Court’s view, this delay was long, unreasonable and inordinate in the circumstances of this case.
28. The reason given by the Applicant for the delay is that he was unaware that the Judgment was delivered and only found out when the Respondents came to the suit land and fenced it in the process of executing the Judgment. In the Court''s view, the reason given does not meet the requirement of Section 79 G of the Civil Procedure Act to show good and sufficient cause for the delay. The court is of the view that the Applicant had a duty to follow up on the progress of the suit.
29. Justice Okwany in International Air Transport Association & Another Vs. Roskar Travel Limited & 3 Others (Civil Case E457 of 2020) (2022)KEHC 200 (KLR) (Commercial and Tax) (17th March 2022) (Ruling) cited with approval as follows:-
“In Savings and Loans Limited Vs. Susan Wanjiru Muritu, Nairobi (Milimani) HCCS No.397 of 2002, Kimaru, J expressed himself as follows: “A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal. For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour is an indictment on the defendant. She had been indolent, and taking into account her last conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the Court to exercise its discretion in favour of such a litigant (emphasis added)”
30. According to the Judgment of the trial court, the Applicant, together with other Defendants before the trial court, filed a joint statement of defence and a counterclaim. It is also stated in the judgment that all the Defendants testified during the hearing. After the trial, counsel for the parties filed submissions and Judgment was delivered on 16th May 2023.
31. The Appellant was fully aware that he had an ongoing case in court, and it was his duty to regularly follow up on the same. To spend a period of almost 21 months without tracking the progress of the case shows indolence on his part. The court finds it incredible that the Applicant herein could have followed up and participated in the hearing of the suit, but failed to follow up on the judgment.
32. The Respondent narrated that the Applicant failed to appeal against the decision of the High Court in the Succession matter and to prosecute the application for stay of execution pending appeal. This appears to be an indication of a party that is not serious about its case and that took knee-jerk actions in response to the actions taken by the Respondents.
33. The Applicant also argued that a Decree was necessary for a successful litigant to proceed with execution. However, no legal provisions were cited for this proposition. In the Court’s view, an unsuccessful party who participated in the suit does not need to be served with a decree to know that execution is imminent.
34. The upshot of the above is that the Court is not persuaded of the merit of the application dated 26th February 2025. The same is hereby dismissed with costs to the 1st Respondent.
Dated, Signed and Delivered Virtually at Nyeri, this 23rd day of October 2025
In the Presence of:-
Ms Kendi - Court Assistant
Maina for the Applicant
Mwaura for the Respondent