1. Before this court for determination is the Notice of Motion application dated 15th October 2024 seeking;
a. Spent
b. Leave be granted to the applicant to file an appeal out of time against the judgment delivered by Principal Magistrate C N Ondieki on 19th April 2023 in ELC Number 11 of 2019
c. Spent
d. Costs of this application be provided for.
2. The application is premised on the grounds set out therein and supported by the affidavit of Peter Ngumbi. He deponed that counsel for the Applicant erroneously filed the appeal in the Environmental and Land Court, which lacked jurisdiction over the matter. He averred that the dispute was of a civil nature relating to land, thus falling within the jurisdiction of the High Court. He contended that his right of appeal was jeopardized by the misfiling of his former counsel and that he only became aware of the jurisdictional defect when the appeal was dismissed on 18th September 2024.
3. The application was opposed through a replying affidavit sworn by Rosemary Kanyiva alias Rosemary Kakonzi Mwangangi on 20th November 2025. She deponed that the Applicant had not demonstrated merit in the intended appeal and that the delay was inordinate. She emphasized that no draft memorandum of appeal had been annexed, nor any grounds disclosed, hence no prima facie case had been shown. She noted that judgment was delivered on 19th April 2023, yet the present application was filed on 15th October 2024—over a year later. She argued that the Applicant had a duty to follow up on his case and that the application was a tactic to frustrate the ends of justice. She urged dismissal with costs.
4. The application was canvassed by way of written submissions. The Applicant submitted that he should not be penalized for the mistake of counsel, citing Philip Chemwolo & Another v Augustine Kubende (1982-88) KAR 103. He argued that upon discovering the error, he acted promptly to regularize the situation and that he had not been indolent but acted in good faith. He urged the Court to exercise its discretion in the interest of justice to prevent substantial loss.
5. The Respondent, on the other hand, framed the issue as whether leave should be granted to file an appeal out of time. They relied on section 79G of the Civil Procedure Act, the Supreme Court decision in Salat v Independent Electoral and Boundaries Commission & 7 Others (2014) KESC 12 (KLR), and Paul Musili Wambua v Attorney General & 2 Others (2015) eKLR, to submit that extension of time is a discretionary remedy that must be exercised judiciously. They faulted the Applicant for failing to explain the nearly 19-month delay, which they termed inordinate and inexcusable.
6. The Respondent further submitted that the Applicant had a duty to monitor his case and cannot shift blame to counsel. They cited Mwangangi v Mugi (Civil Appeal 1 of 2023 [2024] eKLR) and Bi-Mach Engineers Limited v James Kahoro Mwangi (2011) eKLR. They argued that litigation must come to an end and that the Applicant’s conduct reflected forum shopping, procedural manipulation, and bad faith. They emphasized that no arguable appeal had been demonstrated since no draft memorandum was annexed.
7. In conclusion, the Respondent urged the Court to find that the Applicant had failed to demonstrate reasonable cause for the delay or any arguable grounds of appeal. They submitted that granting the application would not advance the ends of justice but would instead reward indolence and procedural manoeuvring while prolonging litigation that ought to be concluded. They therefore urged this Honourable Court to dismiss the application with costs, thereby safeguarding the integrity of its process and affirming the principle that litigation must come to an end.
8. I have carefully considered the application before this court, the affidavits filed by both parties, and the written submissions. The sole issue for determination is whether the application has met the threshold for enlargement of time to file an appeal out of time
9. Section 79G of the Civil Procedure Act, requires that appeals from subordinate courts to the High Court must be filed within thirty (30) days from the date of the judgment from which the appeal lies. The proviso to the section, however, empowers the court to extend time where sufficient time is demonstrated. The discretion to enlarge time is not automatic, and must be exercised judiciously and only upon satisfactory explanation for the delay.
10. The principles guiding the exercise of this discretion were clearly articulated in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2014) eKLR. The Court emphasized that extension of time is an equitable remedy, not a right, and that an applicant must demonstrate sufficient cause, taking into account the length of delay, the reasons advanced, the conduct of the parties, and whether the intended appeal raises arguable grounds.
11. In the present case, the Applicant was aggrieved by the judgment of the trial court delivered on 19th April 2023. He lodged an appeal before the Environment and Land Court, which was dismissed for want of jurisdiction on 18th September 2024. The current application was filed on 15th October 2024, shortly thereafter. The Respondent argues that the delay should be computed from the date of the trial court’s judgment to the date of filing this application, amounting to nearly 19 months. However, it is not disputed that during a substantial portion of this period, the appeal was pending before the ELC until its dismissal.
12. The Applicant has explained that the delay was occasioned by his counsel’s mistake in filing the appeal before a court lacking jurisdiction. Courts have consistently held that litigants should not be unduly punished for the mistakes of counsel, particularly where the litigant has acted promptly upon discovery of the error. In this case, the Applicant filed this present application once the jurisdictional defect was brought to his attention vide the ruling delivered on 18th September 2024 hence the application was filed within reasonable time.
13. The Respondent’s contention that the Applicant has been indolent and engaged in procedural manoeuvring is not borne out by the record. The Applicant pursued his appeal in the ELC within time and in good faith, only to be met with a jurisdictional bar. His subsequent action to seek leave before this Court cannot be construed as forum shopping but rather as a genuine attempt to vindicate his right of appeal.
14. In balancing the interests of justice, the Court must weigh the prejudice to the Respondent against the Applicant’s right to be heard on appeal. The Respondent has not demonstrated any specific prejudice that would arise from the grant of leave, beyond the general interest in finality of litigation. On the other hand, denying the application would permanently shut out the Applicant from exercising his statutory right of appeal, a result that would be disproportionate given the circumstances.
15. Accordingly, I find that the Applicant has demonstrated sufficient cause for the delay. In the interests of justice, the Court is persuaded to exercise its discretion in favor of the Applicant. For the foregoing reasons, the Court finds that the Notice of Motion Application dated 15th October 2024 is merited and is allowed in the following terms:
a. The Applicant is granted leave to file and serve Memorandum of Appeal against the judgment delivered on 19th April 2023 in ELC Number 11 of 2019
b. The memorandum of appeal shall be filed within 14 days of this ruling;
c. Stay of execution in respect of the Judgment in Kithimani CMCC No. E065 of 2021 is granted pending the hearing and determination of the appeal, on condition that the Applicant deposits half the decretal sum in an interest earning account held jointly by Counsels for both parties within 45 days of this Ruling; in the alternative the said amount be deposited in court within the same period, failing which execution to issue.
d. The costs of the Application shall abide the outcome of the appeal.
Orders accordingly.
DATED and DELIVERED at MACHAKOS this 23rd of April 2026
a. Spent
b. Leave be granted to the applicant to file an appeal out of time against the judgment delivered by Principal Magistrate C N Ondieki on 19th April 2023 in ELC Number 11 of 2019
c. Spent
d. Costs of this application be provided for.
2. The application is premised on the grounds set out therein and supported by the affidavit of Peter Ngumbi. He deponed that counsel for the Applicant erroneously filed the appeal in the Environmental and Land Court, which lacked jurisdiction over the matter. He averred that the dispute was of a civil nature relating to land, thus falling within the jurisdiction of the High Court. He contended that his right of appeal was jeopardized by the misfiling of his former counsel and that he only became aware of the jurisdictional defect when the appeal was dismissed on 18th September 2024.
3. The application was opposed through a replying affidavit sworn by Rosemary Kanyiva alias Rosemary Kakonzi Mwangangi on 20th November 2025. She deponed that the Applicant had not demonstrated merit in the intended appeal and that the delay was inordinate. She emphasized that no draft memorandum of appeal had been annexed, nor any grounds disclosed, hence no prima facie case had been shown. She noted that judgment was delivered on 19th April 2023, yet the present application was filed on 15th October 2024—over a year later. She argued that the Applicant had a duty to follow up on his case and that the application was a tactic to frustrate the ends of justice. She urged dismissal with costs.
4. The application was canvassed by way of written submissions. The Applicant submitted that he should not be penalized for the mistake of counsel, citing Philip Chemwolo & Another v Augustine Kubende (1982-88) KAR 103. He argued that upon discovering the error, he acted promptly to regularize the situation and that he had not been indolent but acted in good faith. He urged the Court to exercise its discretion in the interest of justice to prevent substantial loss.
5. The Respondent, on the other hand, framed the issue as whether leave should be granted to file an appeal out of time. They relied on section 79G of the Civil Procedure Act, the Supreme Court decision in Salat v Independent Electoral and Boundaries Commission & 7 Others (2014) KESC 12 (KLR), and Paul Musili Wambua v Attorney General & 2 Others (2015) eKLR, to submit that extension of time is a discretionary remedy that must be exercised judiciously. They faulted the Applicant for failing to explain the nearly 19-month delay, which they termed inordinate and inexcusable.
6. The Respondent further submitted that the Applicant had a duty to monitor his case and cannot shift blame to counsel. They cited Mwangangi v Mugi (Civil Appeal 1 of 2023 [2024] eKLR) and Bi-Mach Engineers Limited v James Kahoro Mwangi (2011) eKLR. They argued that litigation must come to an end and that the Applicant’s conduct reflected forum shopping, procedural manipulation, and bad faith. They emphasized that no arguable appeal had been demonstrated since no draft memorandum was annexed.
7. In conclusion, the Respondent urged the Court to find that the Applicant had failed to demonstrate reasonable cause for the delay or any arguable grounds of appeal. They submitted that granting the application would not advance the ends of justice but would instead reward indolence and procedural manoeuvring while prolonging litigation that ought to be concluded. They therefore urged this Honourable Court to dismiss the application with costs, thereby safeguarding the integrity of its process and affirming the principle that litigation must come to an end.
8. I have carefully considered the application before this court, the affidavits filed by both parties, and the written submissions. The sole issue for determination is whether the application has met the threshold for enlargement of time to file an appeal out of time
9. Section 79G of the Civil Procedure Act, requires that appeals from subordinate courts to the High Court must be filed within thirty (30) days from the date of the judgment from which the appeal lies. The proviso to the section, however, empowers the court to extend time where sufficient time is demonstrated. The discretion to enlarge time is not automatic, and must be exercised judiciously and only upon satisfactory explanation for the delay.
10. The principles guiding the exercise of this discretion were clearly articulated in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission & 7 others (2014) eKLR. The Court emphasized that extension of time is an equitable remedy, not a right, and that an applicant must demonstrate sufficient cause, taking into account the length of delay, the reasons advanced, the conduct of the parties, and whether the intended appeal raises arguable grounds.
11. In the present case, the Applicant was aggrieved by the judgment of the trial court delivered on 19th April 2023. He lodged an appeal before the Environment and Land Court, which was dismissed for want of jurisdiction on 18th September 2024. The current application was filed on 15th October 2024, shortly thereafter. The Respondent argues that the delay should be computed from the date of the trial court’s judgment to the date of filing this application, amounting to nearly 19 months. However, it is not disputed that during a substantial portion of this period, the appeal was pending before the ELC until its dismissal.
12. The Applicant has explained that the delay was occasioned by his counsel’s mistake in filing the appeal before a court lacking jurisdiction. Courts have consistently held that litigants should not be unduly punished for the mistakes of counsel, particularly where the litigant has acted promptly upon discovery of the error. In this case, the Applicant filed this present application once the jurisdictional defect was brought to his attention vide the ruling delivered on 18th September 2024 hence the application was filed within reasonable time.
13. The Respondent’s contention that the Applicant has been indolent and engaged in procedural manoeuvring is not borne out by the record. The Applicant pursued his appeal in the ELC within time and in good faith, only to be met with a jurisdictional bar. His subsequent action to seek leave before this Court cannot be construed as forum shopping but rather as a genuine attempt to vindicate his right of appeal.
14. In balancing the interests of justice, the Court must weigh the prejudice to the Respondent against the Applicant’s right to be heard on appeal. The Respondent has not demonstrated any specific prejudice that would arise from the grant of leave, beyond the general interest in finality of litigation. On the other hand, denying the application would permanently shut out the Applicant from exercising his statutory right of appeal, a result that would be disproportionate given the circumstances.
15. Accordingly, I find that the Applicant has demonstrated sufficient cause for the delay. In the interests of justice, the Court is persuaded to exercise its discretion in favor of the Applicant. For the foregoing reasons, the Court finds that the Notice of Motion Application dated 15th October 2024 is merited and is allowed in the following terms:
a. The Applicant is granted leave to file and serve Memorandum of Appeal against the judgment delivered on 19th April 2023 in ELC Number 11 of 2019
b. The memorandum of appeal shall be filed within 14 days of this ruling;
c. Stay of execution in respect of the Judgment in Kithimani CMCC No. E065 of 2021 is granted pending the hearing and determination of the appeal, on condition that the Applicant deposits half the decretal sum in an interest earning account held jointly by Counsels for both parties within 45 days of this Ruling; in the alternative the said amount be deposited in court within the same period, failing which execution to issue.
d. The costs of the Application shall abide the outcome of the appeal.
Orders accordingly.
DATED and DELIVERED at MACHAKOS this 23rd of April 2026