Background and Introduction
1. I have considered the application dated 2nd July 2025 which seeks leave to file an appeal out of time against the judgment of Hon. Becky Cheloti delievered on 17th March 2025 in Milimani Magistrate Court Commercial Case No. E7995 of 2021. The application is opposed by way of a replying affidavit sworn on 4th August 2025 by WILLIAM KAMAU KIGURU. I have equally considered the written submissions on record.
Analysis and Determination
2. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding any time certified by the lower court as requisite for preparation and delivery of a copy of the decree or order. The proviso allows admission of an appeal out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal within time.
3. The principles for consideration in determining whether or not to grant an extension of time were also enunciated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, as follows: -
"This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
4. The applicants seek to attribute their delay to the alleged omission by their former advocates in failing to notify them of the judgment delivered on 17th March 2025. It is evident that the applicants were duly apprised of the progress of their matter through correspondence from counsel dated 24th September 2024 and 28th November 2024. In the supporting affidavit of Reuben Gitahi, the 1st applicant avers that “I did not receive any advice on the matter after 12/3/2025 when the same was scheduled for judgment.”
5. The record however shows that by way of a letter dated 12th March 2025 from the applicants’ advocates, the applicants were informed as follows:
‘Kindly note that we attended court on the 17/3/2025 when this matter was coming up for judgment. The same was delivered as scheduled when the court partially allowed our claim that the defendant to make further payments for the phase II of the work done. The court further directed that each party do bear their own costs for the suit. We shall supply a copy of the judgment once we get a copy of the same and further engage if there is need to appeal’.
6. This correspondence has not been addressed or explained away. Even if the applicants were to contend, which they have not, that they did not receive the said letter, the position of the law remains clear. As was emphatically stated in Habo Agencies Limited v Wilfred Odhiambo Musingo (Civil Appeal (Application) No. 124 of 2004) [2015] eKLR:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
7. The applicants’ lack of candour is further illustrated by their assertion that they only became aware of the judgment in early July 2025. This claim is plainly untenable, given that the Memorandum of Appeal on record bears the date of 25th June 2025. The inconsistency between their averments and the documentary evidence undermines the credibility of their explanation and demonstrates that the applicants have not approached the Court with the requisite honesty.
8. The applicants are not deserving of this Court’s discretion. On this ground alone, the application must fail. Discretionary relief is reserved for parties who demonstrate candour, diligence, and good faith in the pursuit of justice. Where an applicant approaches the Court with inconsistencies, misrepresentations, or lack of forthrightness, the equitable jurisdiction of the Court cannot be invoked in their favour.
Disposition
The application dated 2nd July 2025 falls below the required threshold for grant of the orders sought and is therefore dismissed with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 3RD DAY OF MARCH 2026.
F. MUGAMBI
JUDGE
1. I have considered the application dated 2nd July 2025 which seeks leave to file an appeal out of time against the judgment of Hon. Becky Cheloti delievered on 17th March 2025 in Milimani Magistrate Court Commercial Case No. E7995 of 2021. The application is opposed by way of a replying affidavit sworn on 4th August 2025 by WILLIAM KAMAU KIGURU. I have equally considered the written submissions on record.
Analysis and Determination
2. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding any time certified by the lower court as requisite for preparation and delivery of a copy of the decree or order. The proviso allows admission of an appeal out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal within time.
3. The principles for consideration in determining whether or not to grant an extension of time were also enunciated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, as follows: -
"This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
4. The applicants seek to attribute their delay to the alleged omission by their former advocates in failing to notify them of the judgment delivered on 17th March 2025. It is evident that the applicants were duly apprised of the progress of their matter through correspondence from counsel dated 24th September 2024 and 28th November 2024. In the supporting affidavit of Reuben Gitahi, the 1st applicant avers that “I did not receive any advice on the matter after 12/3/2025 when the same was scheduled for judgment.”
5. The record however shows that by way of a letter dated 12th March 2025 from the applicants’ advocates, the applicants were informed as follows:
‘Kindly note that we attended court on the 17/3/2025 when this matter was coming up for judgment. The same was delivered as scheduled when the court partially allowed our claim that the defendant to make further payments for the phase II of the work done. The court further directed that each party do bear their own costs for the suit. We shall supply a copy of the judgment once we get a copy of the same and further engage if there is need to appeal’.
6. This correspondence has not been addressed or explained away. Even if the applicants were to contend, which they have not, that they did not receive the said letter, the position of the law remains clear. As was emphatically stated in Habo Agencies Limited v Wilfred Odhiambo Musingo (Civil Appeal (Application) No. 124 of 2004) [2015] eKLR:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
7. The applicants’ lack of candour is further illustrated by their assertion that they only became aware of the judgment in early July 2025. This claim is plainly untenable, given that the Memorandum of Appeal on record bears the date of 25th June 2025. The inconsistency between their averments and the documentary evidence undermines the credibility of their explanation and demonstrates that the applicants have not approached the Court with the requisite honesty.
8. The applicants are not deserving of this Court’s discretion. On this ground alone, the application must fail. Discretionary relief is reserved for parties who demonstrate candour, diligence, and good faith in the pursuit of justice. Where an applicant approaches the Court with inconsistencies, misrepresentations, or lack of forthrightness, the equitable jurisdiction of the Court cannot be invoked in their favour.
Disposition
The application dated 2nd July 2025 falls below the required threshold for grant of the orders sought and is therefore dismissed with costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 3RD DAY OF MARCH 2026.
F. MUGAMBI
JUDGE