1. This is a ruling on a Miscellaneous Application dated 22.01.2025, seeking leave to appeal out of time from the judgment dismissing the suit delivered on 5.11.2025 by the Hon C S Nandafu. The applicant indicated that he had filed an appeal out of time. He filed this application on 27.1.2026. He stated that his wife and daughter were sick and that he was the primary caregiver.
2. It was his case that he would suffer irreparable harm, as he would lose the claim for Ksh 800,000/- owed by the first respondent, and his vehicle, KCS 640 B, a Toyota Axio. The applicant does not deny knowledge of the delivery of judgment on the said date. He annexed a humongous memorandum of appeal that is prolix and unsightly. The gist of the same was that he has a legitimate claim which the court did not award him. All said and done, the appeal may or may not succeed, and it will turn on the evidence on record. My duty is to decide whether the application for extension of time is merited. Both respondents oppose the application.
3. The applicant filed submissions dated 28.05.2026. They submitted that they had trial balance issues, namely that they were dispossessed of the suit motor vehicle and Ksh 800,000/= He relied on Madhupaper International Ltd & another v Kenya Commercial Bank Ltd & 2 others [2003] KEHC 991 (KLR).
4. They prayed that the court exercise its discretion in their favour. Reliance was placed on the case of Anti-Counterfeit Authority v Francis John Wanyange & 4 others [2021] KECA 381 (KLR)2 , in which the Court of Appeal [J. MOHAMMED, J.A] held as follows:
“Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters 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.” [Emphasis supplied].”
5. Further reliance on the court’s discretion was placed on the locus classicus case of Muringa Company Limited v Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR ), in which the Court of Appeal [W. O. Ouko (P), H. M. Okwengu and J. Mohammed, JJA] stated:
“Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie , the intended appeal has chances of success or is a mere frivolity. In considering the last principle, it must be borne in mind that it is not really the role of the single judge to determine definitively the merits of the intended appeal. That is for the full court if and when it is ultimately presented with the appeal. In Athuman Nusura Juma V. Afwa Mohamed Ramadhan, CA No 227 of 2015, this Court stated thus, on that issue:
“This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly”
According to the applicant the delay was only for 22 days while the respondent puts it at 45 days. The Court’s own computation brings the period of the delay to 86 days. A prolonged and inordinate delay is more likely than not to disentitle the applicant leave. Likewise the reason or reasons for the delay must be reasonable and plausible, while bearing in mind the other parameters, such as the prejudice to the parties should the Court allow or reject the application for enlargement of time.”
6. He argued that he was unable to attend court because his child was born sickly and he took time to care for the child. The delay was only 30 days. Reliance was placed on Order 50, rule 4, which excludes the period between 21st December and 13 th January.
7. The first respondent questioned the hospitalisation which took place between 24.11.2023 and 30.11.2025. They posited that he took two months to file the application; they further stated that the memorandum of appeal does not raise serious issues.
8. The first respondent submitted that the appeal has no prospect of success. He relied on the case of Cleophas Wasike v Mucha Swala [1984] KECA 55 (KLR) , in which the Court of Appeal [Kneller, Hancox JJA & Nyarangi Ag JA] stated as follows:
“Now rule 4 when the matter came before the single judge in this court in January 1984 provided that the applicant had to show sufficient reason for the court to extend the time limited by any rule or any decision of this court or of the High Court. Since February 8, 1984 the court, may, on such terms as it thinks just, extend this time. So in those days, Cleophas Wasike had to account satisfactorily for the delay and, if he succeeded in doing that, then he had to show that there was some merit in his appeal. We do not, with great respect, agree that he had to show that his appeal had an overwhelming probability of success. Today Cleophas Wasike must show that there is merit in his appeal, extending the time to institute it and/or serve it will not cause undue prejudice to Mucha Swala and, finally, the delay is not inordinate. And that is now the descending scale of importance. Compare Ladud Ltd v Siu The Times November 24, 1983 CA.”
9. He submitted that they were heard by the lower court, which found that he was not to blame; the applicant ought to have been more diligent. This, the applicant maintained, shows that the applicant has no appeal capable of succeeding.
10. On the question of undue delay, he submitted that the application is an afterthought and was brought with undue delay. The court ought not to exercise discretion in the applicant’s favour. He relied on Fakir Mohammed v Joseph Mugambi & 2 others [2005] eKLR . The decision was affirmed by the full court in Fakir Mohammed v Joseph Mugambi & 2 others [2006] KECA 240 (KLR).
11. On the discretion to extend time to appeal out of time, reliance was placed on Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) , where the Court of Appeal [Omolo, Tunoi & Keiwua JJ A] held as follows:
Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), the Court expressed itself thus:
“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”.
12. It was submitted that the application was an afterthought intended to frustrate the first respondent's enjoyment of the fruits of his judgment. They prayed for the application to be dismissed with costs.
13. The second respondent filed a replying affidavit and submissions, both dated 26.06.2026. She stated that she had no connection with the case. She identified two issues: whether the appeal has any prospect of success and whether the application was brought after undue delay. She answered that the appeal has no prospect of success. It was further argued that the two-month delay was inordinate. Reliance was placed on the case of Adana v Ogora [2025] KEHC 1462 (KLR) , where this court stated as follows:
“In this matter, the Judgment appealed from was delivered on 9.10.2020. The appeal to this Court should have been filed by 9.11.2020. This Memorandum of Appeal was filed on 29.1.2021, 81 days after the last date of due filing. The Appellant was under a duty to show the reasons for the delay. However short or long, the period of delay must be explained. In Alfred Iduvagwa Savatia v Nandi Tea Estate & another [2018] eKLR J. Mohammed JA cited Aganyanya, JA in Monica Malel & Another v R, Eldoret Civil Application No. Nai 246 of 2008 where the learned Judge stated:
“When a reason is proposed to show why there was a delay in filing an appeal it must be specific and not based on guesswork as counsel for the applicants appears to show …. the applicants are not quite sure of why the delay in filing the notice of appeal within the prescribed period occurred, which amounts to saying that no valid reason has been offered for such delay.”
Analysis
14. The only issue in this matter is whether the application to extend time is merited. This is a contested application.
15. An appeal to this court is set out in section 79 G of the Civil Procedure Act 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 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.”
16. The decision sought to be challenged was given in the presence of the parties. The applicant had until 5.12.2025 to file an appeal. He did not do so. He has argued that he delayed for 30 days. That is incorrect, as the period between 21.12.2025 and 13.1.2026 was not counted under Order 50, Rule 4 of the Civil Procedure Rules. The rule provides as follows:
“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.”
17. Therefore, the applicant delayed between 6.12.2025 and 20.12.2025, a period of 13 days. The application was filed on 27.1.2026, a period of 13 days. The delay is 26 days. The same is not inordinate but must be explained. Even a single unexplained day is sufficient to disallow the application. The reason that the delay is not unreasonable is not a reason for extension of time. If no explanation is given, the court’s hands will be tied. The guidelines on the power to extend time were set out by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR ):
17. “The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
e. Whether there would be any prejudice suffered by the respondents if the extension was granted;
f. Whether the application had been brought without undue delay; and;
g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”
18. Thus, an extension of time is not a matter of right but an equitable and discretionary remedy, to be granted only if the Court is satisfied that the circumstances of the case warrant the exercise of its discretion in favour of the applicant. In the present case, I am satisfied that the applicant has provided a reasonable, straightforward and cogent explanation for the delay. He was confronted with the illness of both his wife and child, circumstances that inevitably placed considerable demands upon him as a spouse and parent.
19. The fact that they were subsequently discharged from hospital does not, by itself, indicate an immediate return to normality or negate the ongoing responsibilities of caring for a sick family member. In exercising its discretion, the Court must have regard to the realities confronting a litigant, rather than approach delay in an overly technical manner. In the circumstances, I find the explanation for the delay satisfactory. I accept it and, accordingly, am inclined to exercise my discretion in favour of the applicant.
20. The Applicant delayed filing the application by only 26 days. In these circumstances, that period cannot be characterised as inordinate, particularly where a satisfactory explanation for the delay has been offered. The Applicant's explanation is reasonable and, in my view, sufficiently accounts for the period in question. The Court is therefore satisfied that the delay was neither excessive nor unexplained. In determining whether to enlarge time, the Court must exercise its discretion judiciously and consider the circumstances of each case on its own merits.
21. The relevant factors include the length of the delay, the reason for the delay, whether the applicant has provided a reasonable explanation, any prejudice that the extension may cause to the opposing party, and whether the application has been brought without undue delay after the impediment has been removed. The Court must also consider the interests of justice and whether the extension sought would facilitate the just and proportionate determination of the matter. In the present case, these considerations weigh in favour of granting the extension sought.
22. The Applicant has explained the delay. He made the application in the earliest possible opportunity. It cannot be said that the Applicant was indolent. He also timeously filed the requisite submission, though he was not present in court yesterday.
23. In view of the foregoing, the application dated 26.1.2026 is merited and accordingly allowed.
24. The question of costs is the only outstanding one. Costs are governed by Section 27 of the Civil Procedure Act, which provides as follows:
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
25. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:
"It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.”
26. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) , as follows:
“18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation
22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant.”
27. Given the circumstances of the matter, the applicant, though successful, is not entitled to costs. Therefore, each party will bear its own costs.
Determination
28. Following the foregoing discourse, the upshot is that the following final orders do hereby issue:
(a) The Application dated 27.01.2026 is merited and accordingly allowed.
(b) The applicant to file a memorandum of appeal within 21 days.
(c) Each party shall bear its own costs
(d) The file is closed.
DELIVERED, DATED and SIGNED at KITUI this 4 th day of September, the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
M/s Kathangu Muthama for the Applicant.
Ms Musau for the 1 st Respondent
Pro se Second Respondent
Court Assistant – Allan
Page 1 of 1
2. It was his case that he would suffer irreparable harm, as he would lose the claim for Ksh 800,000/- owed by the first respondent, and his vehicle, KCS 640 B, a Toyota Axio. The applicant does not deny knowledge of the delivery of judgment on the said date. He annexed a humongous memorandum of appeal that is prolix and unsightly. The gist of the same was that he has a legitimate claim which the court did not award him. All said and done, the appeal may or may not succeed, and it will turn on the evidence on record. My duty is to decide whether the application for extension of time is merited. Both respondents oppose the application.
3. The applicant filed submissions dated 28.05.2026. They submitted that they had trial balance issues, namely that they were dispossessed of the suit motor vehicle and Ksh 800,000/= He relied on Madhupaper International Ltd & another v Kenya Commercial Bank Ltd & 2 others [2003] KEHC 991 (KLR).
4. They prayed that the court exercise its discretion in their favour. Reliance was placed on the case of Anti-Counterfeit Authority v Francis John Wanyange & 4 others [2021] KECA 381 (KLR)2 , in which the Court of Appeal [J. MOHAMMED, J.A] held as follows:
“Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters 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.” [Emphasis supplied].”
5. Further reliance on the court’s discretion was placed on the locus classicus case of Muringa Company Limited v Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR ), in which the Court of Appeal [W. O. Ouko (P), H. M. Okwengu and J. Mohammed, JJA] stated:
“Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie , the intended appeal has chances of success or is a mere frivolity. In considering the last principle, it must be borne in mind that it is not really the role of the single judge to determine definitively the merits of the intended appeal. That is for the full court if and when it is ultimately presented with the appeal. In Athuman Nusura Juma V. Afwa Mohamed Ramadhan, CA No 227 of 2015, this Court stated thus, on that issue:
“This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly”
According to the applicant the delay was only for 22 days while the respondent puts it at 45 days. The Court’s own computation brings the period of the delay to 86 days. A prolonged and inordinate delay is more likely than not to disentitle the applicant leave. Likewise the reason or reasons for the delay must be reasonable and plausible, while bearing in mind the other parameters, such as the prejudice to the parties should the Court allow or reject the application for enlargement of time.”
6. He argued that he was unable to attend court because his child was born sickly and he took time to care for the child. The delay was only 30 days. Reliance was placed on Order 50, rule 4, which excludes the period between 21st December and 13 th January.
7. The first respondent questioned the hospitalisation which took place between 24.11.2023 and 30.11.2025. They posited that he took two months to file the application; they further stated that the memorandum of appeal does not raise serious issues.
8. The first respondent submitted that the appeal has no prospect of success. He relied on the case of Cleophas Wasike v Mucha Swala [1984] KECA 55 (KLR) , in which the Court of Appeal [Kneller, Hancox JJA & Nyarangi Ag JA] stated as follows:
“Now rule 4 when the matter came before the single judge in this court in January 1984 provided that the applicant had to show sufficient reason for the court to extend the time limited by any rule or any decision of this court or of the High Court. Since February 8, 1984 the court, may, on such terms as it thinks just, extend this time. So in those days, Cleophas Wasike had to account satisfactorily for the delay and, if he succeeded in doing that, then he had to show that there was some merit in his appeal. We do not, with great respect, agree that he had to show that his appeal had an overwhelming probability of success. Today Cleophas Wasike must show that there is merit in his appeal, extending the time to institute it and/or serve it will not cause undue prejudice to Mucha Swala and, finally, the delay is not inordinate. And that is now the descending scale of importance. Compare Ladud Ltd v Siu The Times November 24, 1983 CA.”
9. He submitted that they were heard by the lower court, which found that he was not to blame; the applicant ought to have been more diligent. This, the applicant maintained, shows that the applicant has no appeal capable of succeeding.
10. On the question of undue delay, he submitted that the application is an afterthought and was brought with undue delay. The court ought not to exercise discretion in the applicant’s favour. He relied on Fakir Mohammed v Joseph Mugambi & 2 others [2005] eKLR . The decision was affirmed by the full court in Fakir Mohammed v Joseph Mugambi & 2 others [2006] KECA 240 (KLR).
11. On the discretion to extend time to appeal out of time, reliance was placed on Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) , where the Court of Appeal [Omolo, Tunoi & Keiwua JJ A] held as follows:
Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), the Court expressed itself thus:
“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”.
12. It was submitted that the application was an afterthought intended to frustrate the first respondent's enjoyment of the fruits of his judgment. They prayed for the application to be dismissed with costs.
13. The second respondent filed a replying affidavit and submissions, both dated 26.06.2026. She stated that she had no connection with the case. She identified two issues: whether the appeal has any prospect of success and whether the application was brought after undue delay. She answered that the appeal has no prospect of success. It was further argued that the two-month delay was inordinate. Reliance was placed on the case of Adana v Ogora [2025] KEHC 1462 (KLR) , where this court stated as follows:
“In this matter, the Judgment appealed from was delivered on 9.10.2020. The appeal to this Court should have been filed by 9.11.2020. This Memorandum of Appeal was filed on 29.1.2021, 81 days after the last date of due filing. The Appellant was under a duty to show the reasons for the delay. However short or long, the period of delay must be explained. In Alfred Iduvagwa Savatia v Nandi Tea Estate & another [2018] eKLR J. Mohammed JA cited Aganyanya, JA in Monica Malel & Another v R, Eldoret Civil Application No. Nai 246 of 2008 where the learned Judge stated:
“When a reason is proposed to show why there was a delay in filing an appeal it must be specific and not based on guesswork as counsel for the applicants appears to show …. the applicants are not quite sure of why the delay in filing the notice of appeal within the prescribed period occurred, which amounts to saying that no valid reason has been offered for such delay.”
Analysis
14. The only issue in this matter is whether the application to extend time is merited. This is a contested application.
15. An appeal to this court is set out in section 79 G of the Civil Procedure Act 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 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.”
16. The decision sought to be challenged was given in the presence of the parties. The applicant had until 5.12.2025 to file an appeal. He did not do so. He has argued that he delayed for 30 days. That is incorrect, as the period between 21.12.2025 and 13.1.2026 was not counted under Order 50, Rule 4 of the Civil Procedure Rules. The rule provides as follows:
“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction.”
17. Therefore, the applicant delayed between 6.12.2025 and 20.12.2025, a period of 13 days. The application was filed on 27.1.2026, a period of 13 days. The delay is 26 days. The same is not inordinate but must be explained. Even a single unexplained day is sufficient to disallow the application. The reason that the delay is not unreasonable is not a reason for extension of time. If no explanation is given, the court’s hands will be tied. The guidelines on the power to extend time were set out by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR ):
17. “The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
a. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
c. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
d. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
e. Whether there would be any prejudice suffered by the respondents if the extension was granted;
f. Whether the application had been brought without undue delay; and;
g. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”
18. Thus, an extension of time is not a matter of right but an equitable and discretionary remedy, to be granted only if the Court is satisfied that the circumstances of the case warrant the exercise of its discretion in favour of the applicant. In the present case, I am satisfied that the applicant has provided a reasonable, straightforward and cogent explanation for the delay. He was confronted with the illness of both his wife and child, circumstances that inevitably placed considerable demands upon him as a spouse and parent.
19. The fact that they were subsequently discharged from hospital does not, by itself, indicate an immediate return to normality or negate the ongoing responsibilities of caring for a sick family member. In exercising its discretion, the Court must have regard to the realities confronting a litigant, rather than approach delay in an overly technical manner. In the circumstances, I find the explanation for the delay satisfactory. I accept it and, accordingly, am inclined to exercise my discretion in favour of the applicant.
20. The Applicant delayed filing the application by only 26 days. In these circumstances, that period cannot be characterised as inordinate, particularly where a satisfactory explanation for the delay has been offered. The Applicant's explanation is reasonable and, in my view, sufficiently accounts for the period in question. The Court is therefore satisfied that the delay was neither excessive nor unexplained. In determining whether to enlarge time, the Court must exercise its discretion judiciously and consider the circumstances of each case on its own merits.
21. The relevant factors include the length of the delay, the reason for the delay, whether the applicant has provided a reasonable explanation, any prejudice that the extension may cause to the opposing party, and whether the application has been brought without undue delay after the impediment has been removed. The Court must also consider the interests of justice and whether the extension sought would facilitate the just and proportionate determination of the matter. In the present case, these considerations weigh in favour of granting the extension sought.
22. The Applicant has explained the delay. He made the application in the earliest possible opportunity. It cannot be said that the Applicant was indolent. He also timeously filed the requisite submission, though he was not present in court yesterday.
23. In view of the foregoing, the application dated 26.1.2026 is merited and accordingly allowed.
24. The question of costs is the only outstanding one. Costs are governed by Section 27 of the Civil Procedure Act, which provides as follows:
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”
25. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:
"It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.”
26. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) , as follows:
“18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation
22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant.”
27. Given the circumstances of the matter, the applicant, though successful, is not entitled to costs. Therefore, each party will bear its own costs.
Determination
28. Following the foregoing discourse, the upshot is that the following final orders do hereby issue:
(a) The Application dated 27.01.2026 is merited and accordingly allowed.
(b) The applicant to file a memorandum of appeal within 21 days.
(c) Each party shall bear its own costs
(d) The file is closed.
DELIVERED, DATED and SIGNED at KITUI this 4 th day of September, the year of our Lord Two Thousand and Twenty - Six. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
M/s Kathangu Muthama for the Applicant.
Ms Musau for the 1 st Respondent
Pro se Second Respondent
Court Assistant – Allan
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