HIGH COURT CIVIL MISCELLANEOUS CASE NO. E016 OF 2026
PETER MAINA WAIHARO……………………………APPLICANT
VERSUS
MOLLY WANGARI (A minor through her next kin and friend
MARY WANJIKU GICHANE)……………………RESPONDENT
RULING
1. Before this court for determination is the Notice of Motion dated 9 th
March 2026 by which the Applicant PETER MAINA WAIHARO seeks the following orders:-
1) Spent…
2) That the honourable court be pleased to grant leave to the
firm of KRK Advocates LPP for the record for the intended
Appellant after Judgment.
3) That leave be granted to the Applicant to lodge and an
Appeal out of time against the judgment and decree issued
by the Hon. Magistrate in Court Civil Suit No. 371 of 2019
and Judgment delivered on 31/7/2025 .
4) That pending the hearing and determination of the
application and the intended appeal herein the pleased to
stay execution of the judgment declaratory suit any form of
execution vide warrants of attachment of moveable property
in execution of warrants for money Nyeri CMCC Civil Suit No.
371 of 2019.
5) SPENT.
6) That as a condition of stay of execution pending the hearing
and determination of the Appeal, the applicant is ordered to
provide security of Kshs. 100,000/- for the decretal sum in
the form of a court deposit.
7) That in the alternative as a condition of stay of execution
pending the hearing and determination of the Appeal, the
applicant is ordered to provide security of Kshs. 100,000/- for
the decretal sum in a joint interest account .
8) That cost for this Application abide the outcome of the
Appeal.
2. The application was premised upon Sections 3A, 78G and 95 of
the Civil Procedure Act (Cap 21), Article 159 2(d) of the
Constitution of Kenya 2010, Order 22 Rule 22, Order 42 Rule 6,
Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil
Procedure Rules 2010 and all other enabling provisions of law and
was supported by the Affidavit of even date sworn by MWANGI
WAMUGO an advocate of the High Court of Kenya.
3. The Respondent MOLY WANGARI (A minor through her next kin and
friend MARY WANJIKU GICHANE ) opposed the application through
the Replying Affidavit dated 17 th March 2026 . The matter was
canvassed by way of written submissions. The Applicant filed the written
submission dated 15 th May 2026 whilst the Respondent relied upon her
written submissions dated 8 th April 2026 .
BACKGROUND
4. This matter emanates from a road traffic accident which occurred on 17 th
February 2019 . The respondent minor was injured as a result of the
accident and through her guardian filed a suit in the magistrates court
being Nyeri Civil Suit No. 371 of 2019, seeking general and special
damages vide a judgment delivered on 31 st July 2025 . Hon. E. G.
NDERITU Chief Magistrate (as she then was) entered judgment
in favour of the Respondent for a sum of Kshs. 1,648,250 plus costs
of the suit and interest.
5. The Appellant who was the defendant in the Lower Court case, now seeks
leave to file an appeal out of time.
6. In opposing the application the Respondent submits that this is an
accident which occurred seven (7) years ago in 2019 and that she is
entitled to the fruits of her judgment. That the Appellant was indolent in
failing to file the appeal within the thirty (30) day period provided for by
law. The Respondent urges the court to dismiss the application with
costs.
ANALYSIS AND DETERMINATION
7. I have carefully considered the application before this court, as well as
the written submissions filed by both parties. The only issue for
determination is whether the prayer to file appeal out of time ought to be
allowed.
8. Section 79G of the Civil Procedure Act provides as follows:-
“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 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 .” [Own emphasis]
9. Therefore the statutory period allowed within which one is required to
file an appeal is thirty (30) days . However with the leave of the court
this statutory period may be extended.
10. In the case of NICHOLAS KIPTOO ARAP SALAT -VS- IEBC & 7
Others [2014] eKLR, the Supreme Court of Kenya enunciated the
principles applicable in considering an application for leave to file appeal
out of time as follows:-
“(a) 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.
(b) A party who seeks for extension of time has the
burden of laying a basis to the satisfaction of the
court.
(c) Whether the court should exercise the discretion to
extend time, is a consideration to be made on a case
by case basis.
(d) Whether there is a reasonable reason for the delay.
The delay should be explained to the satisfaction of
the court.
(e) Whether there will be any prejudice suffered by the
respondent if the extension is granted.
(f) Whether the application has been brought without
undue delay.”
11. Likewise in the case of PAUL MUSILI WAMBUA -VS- ATTORNEY
GENERAL & 2 Others [2015] eKLR the Court of Appeal in considering
an application for leave to file appeal out of time stated as follows:-
“…………………It is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
12. In this case the impugned judgment was delivered on 30 th July 2025 .
The thirty day widow for appeal would have expired on or about 30 th
August 2025 . This application seeking extension of time to file appeal
was filed in March 2026 a full eight (8) months after the judgment
had been delivered. Therefore the application was not filed in a
timely manner. If the applicant was truly aggrieved by the decision of
the trial court he would have moved to appeal much sooner. Instead
the applicant waited until execution was nigh before seeking leave to
appeal out of time.
13. By way of explaining this delay the applicant avers that he fell out with
his previous advocate and had to source for new counsel thus the
statutory period allowed to file appeal expired. That in my view is a
lame excuse, it cannot take the applicant over six (6) months to identify
a new advocate to act for him. Moreover it is trite law that a case
belongs to the litigant and not to the advocate. The duty to pursue
the appeal lay with the applicant himself and not with his advocate. In
the case of RAJESH RUGHANI -VS- FIFTY INVESTMENT LTD &
Another [2005] eKLR the Court stated that
“It is not enough to simply accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not excusable mistake which the court may consider with some sympathy.”
14. The next consideration is whether the appeal is arguable. It must be
remembered that it is not the duty of this court to determine the merits
or otherwise of the intended appeal. I have perused the Draft
Memorandum of Appeal in which the appellant appears to be merely
challenging the quantum awarded by the trial court. The award of
damages is a discretion granted solely to the trial court.
15. Finally this court must consider whether to allow the application will
prejudice the Respondent. The Respondent was a minor who is entitled
to the fruits of the judgment entered in her favour. This accident
occurred some eight (8) years ago. Even after delivery of the judgment
the applicant took no action. He was only galvanized into action when
the execution process was commenced. It would certainly prejudice
the Respondent to have to wait even longer to realise the judgment.
16. All in all I find that this application lacks merit. The reasons advanced
for the delay are merely excuses for the applicant’s indolence. The
Notice of Motion dated 9 th March 2026 is hereby dismissed in its entirety.
Costs to be met by the Applicant.
Dated in Nyeri this 11 th day of August 2026.
HC MISCELLANEOUS CIVIL CASE NO. E016 OF 2026 RULING Page 7 of 9
PETER MAINA WAIHARO……………………………APPLICANT
VERSUS
MOLLY WANGARI (A minor through her next kin and friend
MARY WANJIKU GICHANE)……………………RESPONDENT
RULING
1. Before this court for determination is the Notice of Motion dated 9 th
March 2026 by which the Applicant PETER MAINA WAIHARO seeks the following orders:-
1) Spent…
2) That the honourable court be pleased to grant leave to the
firm of KRK Advocates LPP for the record for the intended
Appellant after Judgment.
3) That leave be granted to the Applicant to lodge and an
Appeal out of time against the judgment and decree issued
by the Hon. Magistrate in Court Civil Suit No. 371 of 2019
and Judgment delivered on 31/7/2025 .
4) That pending the hearing and determination of the
application and the intended appeal herein the pleased to
stay execution of the judgment declaratory suit any form of
execution vide warrants of attachment of moveable property
in execution of warrants for money Nyeri CMCC Civil Suit No.
371 of 2019.
5) SPENT.
6) That as a condition of stay of execution pending the hearing
and determination of the Appeal, the applicant is ordered to
provide security of Kshs. 100,000/- for the decretal sum in
the form of a court deposit.
7) That in the alternative as a condition of stay of execution
pending the hearing and determination of the Appeal, the
applicant is ordered to provide security of Kshs. 100,000/- for
the decretal sum in a joint interest account .
8) That cost for this Application abide the outcome of the
Appeal.
2. The application was premised upon Sections 3A, 78G and 95 of
the Civil Procedure Act (Cap 21), Article 159 2(d) of the
Constitution of Kenya 2010, Order 22 Rule 22, Order 42 Rule 6,
Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil
Procedure Rules 2010 and all other enabling provisions of law and
was supported by the Affidavit of even date sworn by MWANGI
WAMUGO an advocate of the High Court of Kenya.
3. The Respondent MOLY WANGARI (A minor through her next kin and
friend MARY WANJIKU GICHANE ) opposed the application through
the Replying Affidavit dated 17 th March 2026 . The matter was
canvassed by way of written submissions. The Applicant filed the written
submission dated 15 th May 2026 whilst the Respondent relied upon her
written submissions dated 8 th April 2026 .
BACKGROUND
4. This matter emanates from a road traffic accident which occurred on 17 th
February 2019 . The respondent minor was injured as a result of the
accident and through her guardian filed a suit in the magistrates court
being Nyeri Civil Suit No. 371 of 2019, seeking general and special
damages vide a judgment delivered on 31 st July 2025 . Hon. E. G.
NDERITU Chief Magistrate (as she then was) entered judgment
in favour of the Respondent for a sum of Kshs. 1,648,250 plus costs
of the suit and interest.
5. The Appellant who was the defendant in the Lower Court case, now seeks
leave to file an appeal out of time.
6. In opposing the application the Respondent submits that this is an
accident which occurred seven (7) years ago in 2019 and that she is
entitled to the fruits of her judgment. That the Appellant was indolent in
failing to file the appeal within the thirty (30) day period provided for by
law. The Respondent urges the court to dismiss the application with
costs.
ANALYSIS AND DETERMINATION
7. I have carefully considered the application before this court, as well as
the written submissions filed by both parties. The only issue for
determination is whether the prayer to file appeal out of time ought to be
allowed.
8. Section 79G of the Civil Procedure Act provides as follows:-
“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 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 .” [Own emphasis]
9. Therefore the statutory period allowed within which one is required to
file an appeal is thirty (30) days . However with the leave of the court
this statutory period may be extended.
10. In the case of NICHOLAS KIPTOO ARAP SALAT -VS- IEBC & 7
Others [2014] eKLR, the Supreme Court of Kenya enunciated the
principles applicable in considering an application for leave to file appeal
out of time as follows:-
“(a) 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.
(b) A party who seeks for extension of time has the
burden of laying a basis to the satisfaction of the
court.
(c) Whether the court should exercise the discretion to
extend time, is a consideration to be made on a case
by case basis.
(d) Whether there is a reasonable reason for the delay.
The delay should be explained to the satisfaction of
the court.
(e) Whether there will be any prejudice suffered by the
respondent if the extension is granted.
(f) Whether the application has been brought without
undue delay.”
11. Likewise in the case of PAUL MUSILI WAMBUA -VS- ATTORNEY
GENERAL & 2 Others [2015] eKLR the Court of Appeal in considering
an application for leave to file appeal out of time stated as follows:-
“…………………It is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
12. In this case the impugned judgment was delivered on 30 th July 2025 .
The thirty day widow for appeal would have expired on or about 30 th
August 2025 . This application seeking extension of time to file appeal
was filed in March 2026 a full eight (8) months after the judgment
had been delivered. Therefore the application was not filed in a
timely manner. If the applicant was truly aggrieved by the decision of
the trial court he would have moved to appeal much sooner. Instead
the applicant waited until execution was nigh before seeking leave to
appeal out of time.
13. By way of explaining this delay the applicant avers that he fell out with
his previous advocate and had to source for new counsel thus the
statutory period allowed to file appeal expired. That in my view is a
lame excuse, it cannot take the applicant over six (6) months to identify
a new advocate to act for him. Moreover it is trite law that a case
belongs to the litigant and not to the advocate. The duty to pursue
the appeal lay with the applicant himself and not with his advocate. In
the case of RAJESH RUGHANI -VS- FIFTY INVESTMENT LTD &
Another [2005] eKLR the Court stated that
“It is not enough to simply accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not excusable mistake which the court may consider with some sympathy.”
14. The next consideration is whether the appeal is arguable. It must be
remembered that it is not the duty of this court to determine the merits
or otherwise of the intended appeal. I have perused the Draft
Memorandum of Appeal in which the appellant appears to be merely
challenging the quantum awarded by the trial court. The award of
damages is a discretion granted solely to the trial court.
15. Finally this court must consider whether to allow the application will
prejudice the Respondent. The Respondent was a minor who is entitled
to the fruits of the judgment entered in her favour. This accident
occurred some eight (8) years ago. Even after delivery of the judgment
the applicant took no action. He was only galvanized into action when
the execution process was commenced. It would certainly prejudice
the Respondent to have to wait even longer to realise the judgment.
16. All in all I find that this application lacks merit. The reasons advanced
for the delay are merely excuses for the applicant’s indolence. The
Notice of Motion dated 9 th March 2026 is hereby dismissed in its entirety.
Costs to be met by the Applicant.
Dated in Nyeri this 11 th day of August 2026.
HC MISCELLANEOUS CIVIL CASE NO. E016 OF 2026 RULING Page 7 of 9