The applicant through notice of motion dated 28 th May 2025 prays that this court grants him leave to file appeal against judgment of the Chief Magistrate’s Court at Thika civil case number E276 of 2023 dated 14-04-2025 out of time. The application is supported by affidavit of the applicant sworn on 28 th May 2025 in which he depones that he delayed in filing the appeal in time because he had to consult with his family members on the way forward after the judgment of the lower court was delivered.
The application is opposed through replying affidavit of one Millian Aligula, a claims officer with Britam Insurance Kenya Limited which had insured the respondent’s motor vehicle registration number KAS 433Y. In the affidavit sworn on 8-07-2025, she depones that they had settled part of the decretal sum and that the delay in filing the appeal is inexcusable and unreasonable. She adds that the application is an abuse of the court process and ought to be dismissed with costs.
The application was argued by way of written submissions. I have read the submissions of the applicant dated 9-07-2025 and those of the respondent dated 6 th August 2025. The parties have not said much in the submissions above what they have deponed in their respective affidavits.
The applicant has urged the court to consider that since the deceased was his brother, he had to sit down with his family members who also had a stake in the matter and by the time they decided on the way forward, time had lapsed by two days. On the other hand, the respondent has argued that these are not plausible reasons for granting the application.
The factors a court would consider in deciding whether or not to grant prayers for enlargement of time are well settled. These are; the length of the delay, the reason for the delay and the chances of the appeal succeeding. In Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo [2022] KEHC 1839 (KLR), it was held that;
‘As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.’
The applicant’s explanation and reasons for the delay are not really convincing. The applicant has not stated when he became aware of the judgment while the respondent claims that the same was published on 28-04-2025. The applicant has also not told this court why it had to take more than a month for the family to make a simple decision on whether to appeal or not. However, I do appreciate that the applicant had not brought the suit for his own behalf but on behalf of the deceased’s estate which obviously comprised of other family members and it is reasonable to expect that the decision was not by him as an individual to make. For that reason, I am reluctantly inclined to give him the benefit of doubt if not for anything, because the ultimate loser if the appeal is not filed would be the estate of the deceased and not the applicant as an individual.
The respondent has not demonstrated what prejudice he is likely to suffer if the application is allowed. The only averments in his replying affidavit are that the insurer has settled part of the decretal sum and was in the process of settling the balance and that the application is an abuse of the court process. There is no demonstration how the application has abused the court process. I see no prejudice to the respondent or any abuse of the court process.
On the merits of the appeal, this court does not wish to say much safe to state that judging from the memorandum of appeal, there are reasonable grounds for the applicant’s grievance. The applicant has questioned the Magistrate’s finding on liability which would require scrutiny of the evidence afresh by the court once the appeal comes up for hearing. At this stage, the court is only required to ascertain that the appeal is not frivolous and has chances of success however remote.
Denying a party an opportunity to exercise its right of appeal should be the last resort especially where the delay is not long and is excusable. In this case, the applicant was late by four days which is clearly not inordinate. The inconveniences caused to the respondent by allowing this application can be compensated by an award of costs. I share the sentiments of Honourable Justice R.E. Aburili in Edward Kamau & James Karanja v Hannah Mukui Gichuki & Gestetner Limited [2015] KEHC 2563 (KLR) where she stated as follows;
‘The right of appeal, it has been held time and again, is a Constitutional right which is the cornerstone of the rule of law. To deny a party that right, would in essence be denying them access to justice which is guaranteed under Article 48 of the Constitution and also a denial of a right to a fair hearing guaranteed under Article 50 (1) of the Constitution which latter right cannot be limited under Article 25 of the said Constitution.’
In view of the above, I exercise my discretion and allow the application in the following terms;
1. The applicant is granted leave to file the appeal out of time which should be done within the next fourteen days.
2. The applicant shall pay to the respondent costs of Kshs 10,000.00 within the next fourteen days.
3. In default of payment of costs ordered in (2) above, order (1) above shall stand vacated and the application deemed dismissed with costs.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in absence of the appellant and in presence of Miss Otieno holding brief for Mr. Bitok for the respondent.
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The application is opposed through replying affidavit of one Millian Aligula, a claims officer with Britam Insurance Kenya Limited which had insured the respondent’s motor vehicle registration number KAS 433Y. In the affidavit sworn on 8-07-2025, she depones that they had settled part of the decretal sum and that the delay in filing the appeal is inexcusable and unreasonable. She adds that the application is an abuse of the court process and ought to be dismissed with costs.
The application was argued by way of written submissions. I have read the submissions of the applicant dated 9-07-2025 and those of the respondent dated 6 th August 2025. The parties have not said much in the submissions above what they have deponed in their respective affidavits.
The applicant has urged the court to consider that since the deceased was his brother, he had to sit down with his family members who also had a stake in the matter and by the time they decided on the way forward, time had lapsed by two days. On the other hand, the respondent has argued that these are not plausible reasons for granting the application.
The factors a court would consider in deciding whether or not to grant prayers for enlargement of time are well settled. These are; the length of the delay, the reason for the delay and the chances of the appeal succeeding. In Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo [2022] KEHC 1839 (KLR), it was held that;
‘As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.’
The applicant’s explanation and reasons for the delay are not really convincing. The applicant has not stated when he became aware of the judgment while the respondent claims that the same was published on 28-04-2025. The applicant has also not told this court why it had to take more than a month for the family to make a simple decision on whether to appeal or not. However, I do appreciate that the applicant had not brought the suit for his own behalf but on behalf of the deceased’s estate which obviously comprised of other family members and it is reasonable to expect that the decision was not by him as an individual to make. For that reason, I am reluctantly inclined to give him the benefit of doubt if not for anything, because the ultimate loser if the appeal is not filed would be the estate of the deceased and not the applicant as an individual.
The respondent has not demonstrated what prejudice he is likely to suffer if the application is allowed. The only averments in his replying affidavit are that the insurer has settled part of the decretal sum and was in the process of settling the balance and that the application is an abuse of the court process. There is no demonstration how the application has abused the court process. I see no prejudice to the respondent or any abuse of the court process.
On the merits of the appeal, this court does not wish to say much safe to state that judging from the memorandum of appeal, there are reasonable grounds for the applicant’s grievance. The applicant has questioned the Magistrate’s finding on liability which would require scrutiny of the evidence afresh by the court once the appeal comes up for hearing. At this stage, the court is only required to ascertain that the appeal is not frivolous and has chances of success however remote.
Denying a party an opportunity to exercise its right of appeal should be the last resort especially where the delay is not long and is excusable. In this case, the applicant was late by four days which is clearly not inordinate. The inconveniences caused to the respondent by allowing this application can be compensated by an award of costs. I share the sentiments of Honourable Justice R.E. Aburili in Edward Kamau & James Karanja v Hannah Mukui Gichuki & Gestetner Limited [2015] KEHC 2563 (KLR) where she stated as follows;
‘The right of appeal, it has been held time and again, is a Constitutional right which is the cornerstone of the rule of law. To deny a party that right, would in essence be denying them access to justice which is guaranteed under Article 48 of the Constitution and also a denial of a right to a fair hearing guaranteed under Article 50 (1) of the Constitution which latter right cannot be limited under Article 25 of the said Constitution.’
In view of the above, I exercise my discretion and allow the application in the following terms;
1. The applicant is granted leave to file the appeal out of time which should be done within the next fourteen days.
2. The applicant shall pay to the respondent costs of Kshs 10,000.00 within the next fourteen days.
3. In default of payment of costs ordered in (2) above, order (1) above shall stand vacated and the application deemed dismissed with costs.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in absence of the appellant and in presence of Miss Otieno holding brief for Mr. Bitok for the respondent.
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