U
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
HCCMISC. NO. E009 OF 2025
SAMUEL KIPKULEI CHEROP………………….…..………1 ST PLAINTIFF
LAZARUS KIRUI ………………………………….…………..2 ND PLAINTIFF
VERSUS
SAMMY YEGO ROTICH …….………………………..………DEFENDANT
RULING
1) Before me is the application dated 20/11/2025 brought under sections 79G, 1A, 1B, & 3A of the CPA, Cap 21 Laws of Kenya, Order 42 Rule 6, Order 50 Rule 1 of the Laws of Kenya 2010.
2) The Applicant seeks:-
2. THAT this Honourable Court be pleased to grant the leave to the Applicant to file an appeal out of time against the Judgment delivered on 25 th April, 2024 in Kabarnet Magistrates Court Civil Case No. E032 of 2022, Sammy Rotich vs Samuel Kipkulei Cherop & Lazarus Kirui.
3. THAT pending the hearing and determination of the intended appeal, the Honourable Court be pleased to grant a stay of execution of the Judgment delivered on 25 th April 2024 and decree dated 9 th September, 2025.
4. THAT the draft Memorandum of Appeal dated 20 th November, 2025 and annexed hereto be deemed as duly filed upon payment of the requisite fees.
5. THAT the costs of this application be provided for.
3) The application is supported by the grounds on its face and the supporting affidavit sworn by Samuel Kipkulei Cherop on his behalf and that of the 2 nd applicant.
4) The main grounds are that:-
a) THAT the Honorable Principal Magistrate Hon. Caroline R.T. Ateya delivered its judgment on 25 th April, 2024 and the statutory days for filing an appeal have lapsed.
b) THAT the delay in filing the appeal within the statutory period was not deliberate but was caused by lack of notification by the counsel previously on record.
3. THAT the Respondent has proceeded to issue a proclamation notice and attachment of the defendant’s motor vehicle, cows and household equipment. (Annexed and marked and marked SKC 2 (a) (b) and (c) are copies of a proclamation notice, warrant of attachment and sale and the auctioneers’ fee note).
5. THAT the 1 st Applicant/Appellant became aware of the determination of this case after receiving a proclamation notice, warrant of attachment and sale in execution of decree for money and the auctioneer’s fee note on 30 th October, 2025
5) The application is opposed vide the Replying Affidavit of Sammy Yego Rotich on the following grounds:-
3. THAT the Applicant/Applicant’s application is fatally defective, incompetent, malafides and an abuse of court process.
4. THAT, the court issued a Judgment in favour of the Respondent as against the Applicants in the primary suit on 25 th April 2024.
5. THAT the Respondent thereafter filed his bill of costs and issued a taxation notice to the Applicants advocate.
6. THAT the matter thereafter proceeded for taxation of the Respondent’s bill of costs on where ruling was delivered on 2 nd October, 2024.
7. THAT all through, the Applicants advocate on record always appeared in court on their behalf.
8. T HAT on 9 th October, 2024 my advocates wrote to the Applicant’s advocate on record sharing their bank account details for settlement of the decretal sum. Annexed marked SR-001 is a copy of the letter dated 9 th October, 2024 .
9. THAT the Appellants/Applicants did not settle the said sum.
10. THAT the Appellants/Applicants having not settled the pending amount prompted the Respondent through his advocates to instruct Charles Auctioneers to track the Appellants/Applicants and execute the decree legally issued herein.
11. THAT in response to paragraphs 5, 6, 7 and 8 of the Supporting Affidavit, the judgment sought to be appealed against was delivered on 25 th April, 2024 .
12. THAT the Applicant’s assertion that they were unaware of the delivery is a clear indication of indolence and lack of diligence , which is not a sufficient or plausible explanation for an inordinate delay of approximately one and a half years (19 months).
6) It is deponed further that the applicants had a responsibility to follow up on their matter, and that the remedy of extension of time is an equitable remedy, not a right, and only goes to a deserving party. In addition, that the applicants have not supplied any evidence to show that here was correspondence between the applicants and their counsel, that the application be determined with cost. The 1 st applicant filed a Supplementary Affidavit where he depones:-
3. THAT I reiterate the fact that the delay to appeal within time was caused by my previous advocate’s failure to inform us of the progress of the suit during trial and its outcome.
4. THAT although our advocate previously on record appeared in court on our behalf, we were not informed of when to present our defence, a fact which made us belief that the suit was still ongoing.
5. THAT the Respondent’s letter marked SR – 001 dated 9 th October, 2024 attached to the Respondent’s replying affidavit never came within our knowledge.
6. THAT we became aware that the suit had been finalized when we were served with a proclamation of attachment and an auctioneers’ fee not all dated 9 th September, 2025. (Annexed and marked SKC 2b and 2 (c) in our supporting affidavit).
7. THAT immediately we received a proclamation of attachment and an auctioneers’ fee not, we moved the court, notified the insurer of the determination of the suit, and paid the Respondent the amount in excess of the insurable sum. (annexed herein and marked SKC 1 (a) (b) (c) and (d) are letters, receipt of payment and AMACO’s undertaking to pay Kshs. 3,000,000/=.
8. THAT we are advised by our advocate on record that an advocate’s mistake cannot be visited on the client.
7) Parties through counsel filed Written Submissions.
8) For the Applicant. The issues for determination are set out thus:-
1. Whether the explanation for the delay plausible?
2. Whether the appeal is arguable one deserving a day in court or a frivolous one which would only result in the delay of the course of justice?
3. Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favorable exercise of discretion in favour of the Applicant?
9) On whether the delay is inordinate – it is submitted that the court has the discretion to allow an application for leave such as this – see Charles N Ngugi v ASL Credit [2022] eKLR on what amounts to inordinate delay the court is referred to Utalii Transport Company Limited & 3 others vs. NIC Bank Limited & another [2014] eKLR where the court held;
“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying Court’s mind on the delay, caution is advised for courts not to take the word ‘inordinate’ in its dictionary meaning, but in the sense of excessive as compared to normality”
This court is urged to do its best to rectify the mistake herein in the interests of justice .
10) The court is further guided by the principle that mistakes of counsel should not be visited upon a litigant where the interests of justice demand otherwise, as reiterated in Philip Chemwolo & Another vs. Augustine Kubede [1982 -88] KLR 103.]
11) On whether the appeal is arguable – the court is referred to Martha Wangari Karua vs IEBC Civil Appeal No. 1 of 2017. Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR – on the exercise of discretion.
“…the grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively, or at whom or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of the exercise of discretion is not dictated by any set factor. Discretions are not packaged, programmed responses.”
12) It was also submitted that the respondent would not suffer any prejudice that is not compensable by way of costs.
13) For the Respondent it is submitted – that the following issues arise for determination:-
1. Whether the Applicants were aware of the judgment delivered on 25 th April, 2024.
2. Whether the Applicants acted diligently and vigilantly in defending their case.
3. Whether this application is brought in good faith.
4. Whether the Applicant has established sufficient grounds to warrant the grant of an extension of time to file an appeal.
5. Whether the Respondent is entitled to costs of the application .
14) It is urged that the fact that the applicants had an advocated on record, is sufficient evidence that they were aware of their case – its progress, the judgment, and all orders made – the court is referred to the American case – United States vs Revie 834 F. 2d 1198, 1203 (5 th Circ. 1987).
The court is also referred to the Court of Appeal case of Shimmers Plaza Ltd vs National Bank of Kenya Ltd [2015] KECA
“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable…”
15) That the fact that counsel acted to the point of depending the taxation of costs is evidence that counsel could not be acting without instructions.
16) It is argued further that the applicants were evidently indolent – that in Kenya Power & Lighting Co. Ltd v Barasa & Anor [2026] KEHC 6901 (KLR).
“In my view, the applicant has been indolent, and if a party is deemed “indolent”, the court will dismiss their claim, even if they might have had a valid case, because their inaction has made it inequitable to grant them relief.”
17) in Muthiora v Ndirangu t/a Samidoh & another [2025] KEHC 7767 (KLR) the court challenged the indolence of the Appellant and held that:
“While this court sympathizes with the Appellant, it is my view that a case belongs to a litigant and he/she should remain vigilant to ensure that court orders are complied with and that applications filed are prosecuted or defended”
18) It is contended that the application is not in good faith. In a ruling dated 21 st November, 2025, on this Application, the court issued directions, inter-alia, that pending further directions, stay of execution do issue on condition that the Respondent is paid half the decretal amount within 21 days from the date of the ruling. That , it has been six months and the Applicants are yet to comply with this order. They have not deposited the amounts as instructed and it would appear they do not intend to. Clearly, this Application has not been brought in good faith.
19) It is also argued that the applicant has not established grounds for of time. It is argued that no sufficient cause has been shown, and failure to cut is not a good cause see Velji Shamad vs Shamji Bros & Popatlal Karman & Co [1957] EA 438 where the court held inter alia that where time to file an appeal has elapsed the party who is successful has a vested right to the judgment which ought to be effected except in exceptional circumstances.
20) On the issue of mistake of counsel – the respondent relied on Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] KECA 674 (KLR) held that:-
“While mere negligent mistake by counsel may be excusable, the situation is vastly different in cases where a litigant knowingly and wittingly condones such negligence or where the litigant himself exhibits a careless attitude (in Mwangi v Kariuki [1999] LLR 2632 (CAK) Shah, JA. Ruled that “mere inaction by counsel should only support a refusal to exercise discretion if coupled with a litigant’s careless attitude.” The import of this that while the mistake of counsel is excusable, if it is accompanied by a litigant’s carelessness and inactivity, then the refusal by court to exercise discretion in favour of such a party cannot be impugned.”
21) It is further submitted that the applicant cannot be rescued by the “ Oxygen Principle ” in sections 1A, 1B & 3A of the Civil Procedure Act. The court was referred to Hunker Trading Company Ltd vs Elf Oil Kenya Ltd Civil Application Nai 6/2016.
22) Further that a case belongs to the litigant not to the advocate – and that litigant has the duty to pursue the prosecution of the litigants case –This was the position in Savings & Loans Ltd vs Susan Wanjiru Muritu Nbi (Milimani) HCC No. 397/2002 where the court held inter alia
“For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”
23) On who should bear the costs of the application – the court is referred to section 27 of the CPA, and R vs Rosemary Wairimu Munene Exparte Applicant vs Kururu Dairy Farmers Coop Society Ltd.
Determination
24) I have carefully considered the application before me. the submissions, the rival affidavits and all circumstances of this application.
25) The only issue for determination is whether the applicant has given the sufficient reason for the delay in the filing of the appeal.
26) The proviso to section 79 G states 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.”
27) In addition the appellant must explain the delay as well.
28) In this case the delay – as admitted, was 19 months.
And the reason – that the advocate was not giving the applicant’s updates of their case.
29) In the 1 st place – this is a serious accusation against their previous advocate. That advocate was not given the opportunity to defend himself/or explain why he did not update his clients of the proceedings against them.
30) However – more importantly the applicants do not see their role in all this – they have not taken responsibility for their indolence – who gets sued, for damages, and just sits, for 19 months without following up on their case, without asking their advocate what is going on – who?
31) The applicants were not being candid/forthright with the court, and heaping blame on the former advocate whom they did not join these proceedings does not amount to good and sufficient cause –
32) The applicant’s plead “mistake of counsel” what mistake did the advocate commit?
33) From what the court learns from the respondent, this advocate was in court the whole-time, he defended the suit, he defended the taxation – what mistake?
34) I agree with the respondent that counsel could not have done all this without the instructions from his clients.
Hence, from the authorities cited – the applicants are the owners of their case and they had the duty and obligation to follow up with their advocate.
35) Is there any reason for this court to exercise its discretion in favour of the applicants to extend time to file the appeal?
36) The applicants have not even complied with the interim orders of this court – to pay part of the decretal sum to the respondent. Having not complied with the orders of the court, why would the court grant them other orders?
37) The applicants have not demonstrated that they deserve the equitable orders they seek from this court.
38) The application is without merit and the same is declined – with costs to the respondent.
RULING dated, signed and delivered virtually at Kabarnet High Court this10th July 2026.
HON MUMBUA T MATHEKA
JUDGE
In the presence of :-
CA Momanyi
Ms. Kogo for Kipkulei for the applicant
Ngaywa &Kibet for Respondent
Ruling HCC Misc. APPLICATION E009 of 2025 Page 2 of 2
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
HCCMISC. NO. E009 OF 2025
SAMUEL KIPKULEI CHEROP………………….…..………1 ST PLAINTIFF
LAZARUS KIRUI ………………………………….…………..2 ND PLAINTIFF
VERSUS
SAMMY YEGO ROTICH …….………………………..………DEFENDANT
RULING
1) Before me is the application dated 20/11/2025 brought under sections 79G, 1A, 1B, & 3A of the CPA, Cap 21 Laws of Kenya, Order 42 Rule 6, Order 50 Rule 1 of the Laws of Kenya 2010.
2) The Applicant seeks:-
2. THAT this Honourable Court be pleased to grant the leave to the Applicant to file an appeal out of time against the Judgment delivered on 25 th April, 2024 in Kabarnet Magistrates Court Civil Case No. E032 of 2022, Sammy Rotich vs Samuel Kipkulei Cherop & Lazarus Kirui.
3. THAT pending the hearing and determination of the intended appeal, the Honourable Court be pleased to grant a stay of execution of the Judgment delivered on 25 th April 2024 and decree dated 9 th September, 2025.
4. THAT the draft Memorandum of Appeal dated 20 th November, 2025 and annexed hereto be deemed as duly filed upon payment of the requisite fees.
5. THAT the costs of this application be provided for.
3) The application is supported by the grounds on its face and the supporting affidavit sworn by Samuel Kipkulei Cherop on his behalf and that of the 2 nd applicant.
4) The main grounds are that:-
a) THAT the Honorable Principal Magistrate Hon. Caroline R.T. Ateya delivered its judgment on 25 th April, 2024 and the statutory days for filing an appeal have lapsed.
b) THAT the delay in filing the appeal within the statutory period was not deliberate but was caused by lack of notification by the counsel previously on record.
3. THAT the Respondent has proceeded to issue a proclamation notice and attachment of the defendant’s motor vehicle, cows and household equipment. (Annexed and marked and marked SKC 2 (a) (b) and (c) are copies of a proclamation notice, warrant of attachment and sale and the auctioneers’ fee note).
5. THAT the 1 st Applicant/Appellant became aware of the determination of this case after receiving a proclamation notice, warrant of attachment and sale in execution of decree for money and the auctioneer’s fee note on 30 th October, 2025
5) The application is opposed vide the Replying Affidavit of Sammy Yego Rotich on the following grounds:-
3. THAT the Applicant/Applicant’s application is fatally defective, incompetent, malafides and an abuse of court process.
4. THAT, the court issued a Judgment in favour of the Respondent as against the Applicants in the primary suit on 25 th April 2024.
5. THAT the Respondent thereafter filed his bill of costs and issued a taxation notice to the Applicants advocate.
6. THAT the matter thereafter proceeded for taxation of the Respondent’s bill of costs on where ruling was delivered on 2 nd October, 2024.
7. THAT all through, the Applicants advocate on record always appeared in court on their behalf.
8. T HAT on 9 th October, 2024 my advocates wrote to the Applicant’s advocate on record sharing their bank account details for settlement of the decretal sum. Annexed marked SR-001 is a copy of the letter dated 9 th October, 2024 .
9. THAT the Appellants/Applicants did not settle the said sum.
10. THAT the Appellants/Applicants having not settled the pending amount prompted the Respondent through his advocates to instruct Charles Auctioneers to track the Appellants/Applicants and execute the decree legally issued herein.
11. THAT in response to paragraphs 5, 6, 7 and 8 of the Supporting Affidavit, the judgment sought to be appealed against was delivered on 25 th April, 2024 .
12. THAT the Applicant’s assertion that they were unaware of the delivery is a clear indication of indolence and lack of diligence , which is not a sufficient or plausible explanation for an inordinate delay of approximately one and a half years (19 months).
6) It is deponed further that the applicants had a responsibility to follow up on their matter, and that the remedy of extension of time is an equitable remedy, not a right, and only goes to a deserving party. In addition, that the applicants have not supplied any evidence to show that here was correspondence between the applicants and their counsel, that the application be determined with cost. The 1 st applicant filed a Supplementary Affidavit where he depones:-
3. THAT I reiterate the fact that the delay to appeal within time was caused by my previous advocate’s failure to inform us of the progress of the suit during trial and its outcome.
4. THAT although our advocate previously on record appeared in court on our behalf, we were not informed of when to present our defence, a fact which made us belief that the suit was still ongoing.
5. THAT the Respondent’s letter marked SR – 001 dated 9 th October, 2024 attached to the Respondent’s replying affidavit never came within our knowledge.
6. THAT we became aware that the suit had been finalized when we were served with a proclamation of attachment and an auctioneers’ fee not all dated 9 th September, 2025. (Annexed and marked SKC 2b and 2 (c) in our supporting affidavit).
7. THAT immediately we received a proclamation of attachment and an auctioneers’ fee not, we moved the court, notified the insurer of the determination of the suit, and paid the Respondent the amount in excess of the insurable sum. (annexed herein and marked SKC 1 (a) (b) (c) and (d) are letters, receipt of payment and AMACO’s undertaking to pay Kshs. 3,000,000/=.
8. THAT we are advised by our advocate on record that an advocate’s mistake cannot be visited on the client.
7) Parties through counsel filed Written Submissions.
8) For the Applicant. The issues for determination are set out thus:-
1. Whether the explanation for the delay plausible?
2. Whether the appeal is arguable one deserving a day in court or a frivolous one which would only result in the delay of the course of justice?
3. Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favorable exercise of discretion in favour of the Applicant?
9) On whether the delay is inordinate – it is submitted that the court has the discretion to allow an application for leave such as this – see Charles N Ngugi v ASL Credit [2022] eKLR on what amounts to inordinate delay the court is referred to Utalii Transport Company Limited & 3 others vs. NIC Bank Limited & another [2014] eKLR where the court held;
“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying Court’s mind on the delay, caution is advised for courts not to take the word ‘inordinate’ in its dictionary meaning, but in the sense of excessive as compared to normality”
This court is urged to do its best to rectify the mistake herein in the interests of justice .
10) The court is further guided by the principle that mistakes of counsel should not be visited upon a litigant where the interests of justice demand otherwise, as reiterated in Philip Chemwolo & Another vs. Augustine Kubede [1982 -88] KLR 103.]
11) On whether the appeal is arguable – the court is referred to Martha Wangari Karua vs IEBC Civil Appeal No. 1 of 2017. Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR – on the exercise of discretion.
“…the grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively, or at whom or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the appeal tribunal. The result of the exercise of discretion is not dictated by any set factor. Discretions are not packaged, programmed responses.”
12) It was also submitted that the respondent would not suffer any prejudice that is not compensable by way of costs.
13) For the Respondent it is submitted – that the following issues arise for determination:-
1. Whether the Applicants were aware of the judgment delivered on 25 th April, 2024.
2. Whether the Applicants acted diligently and vigilantly in defending their case.
3. Whether this application is brought in good faith.
4. Whether the Applicant has established sufficient grounds to warrant the grant of an extension of time to file an appeal.
5. Whether the Respondent is entitled to costs of the application .
14) It is urged that the fact that the applicants had an advocated on record, is sufficient evidence that they were aware of their case – its progress, the judgment, and all orders made – the court is referred to the American case – United States vs Revie 834 F. 2d 1198, 1203 (5 th Circ. 1987).
The court is also referred to the Court of Appeal case of Shimmers Plaza Ltd vs National Bank of Kenya Ltd [2015] KECA
“Would the knowledge of the judgment or order by the advocate of the alleged contemnor suffice for contempt proceedings? We hold the view that it does. This is more so in a case such as this one where the advocate was in court representing the alleged contemnor and the orders were made in his presence. There is an assumption which is not unfounded, and which in our view is irrefutable…”
15) That the fact that counsel acted to the point of depending the taxation of costs is evidence that counsel could not be acting without instructions.
16) It is argued further that the applicants were evidently indolent – that in Kenya Power & Lighting Co. Ltd v Barasa & Anor [2026] KEHC 6901 (KLR).
“In my view, the applicant has been indolent, and if a party is deemed “indolent”, the court will dismiss their claim, even if they might have had a valid case, because their inaction has made it inequitable to grant them relief.”
17) in Muthiora v Ndirangu t/a Samidoh & another [2025] KEHC 7767 (KLR) the court challenged the indolence of the Appellant and held that:
“While this court sympathizes with the Appellant, it is my view that a case belongs to a litigant and he/she should remain vigilant to ensure that court orders are complied with and that applications filed are prosecuted or defended”
18) It is contended that the application is not in good faith. In a ruling dated 21 st November, 2025, on this Application, the court issued directions, inter-alia, that pending further directions, stay of execution do issue on condition that the Respondent is paid half the decretal amount within 21 days from the date of the ruling. That , it has been six months and the Applicants are yet to comply with this order. They have not deposited the amounts as instructed and it would appear they do not intend to. Clearly, this Application has not been brought in good faith.
19) It is also argued that the applicant has not established grounds for of time. It is argued that no sufficient cause has been shown, and failure to cut is not a good cause see Velji Shamad vs Shamji Bros & Popatlal Karman & Co [1957] EA 438 where the court held inter alia that where time to file an appeal has elapsed the party who is successful has a vested right to the judgment which ought to be effected except in exceptional circumstances.
20) On the issue of mistake of counsel – the respondent relied on Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others [2015] KECA 674 (KLR) held that:-
“While mere negligent mistake by counsel may be excusable, the situation is vastly different in cases where a litigant knowingly and wittingly condones such negligence or where the litigant himself exhibits a careless attitude (in Mwangi v Kariuki [1999] LLR 2632 (CAK) Shah, JA. Ruled that “mere inaction by counsel should only support a refusal to exercise discretion if coupled with a litigant’s careless attitude.” The import of this that while the mistake of counsel is excusable, if it is accompanied by a litigant’s carelessness and inactivity, then the refusal by court to exercise discretion in favour of such a party cannot be impugned.”
21) It is further submitted that the applicant cannot be rescued by the “ Oxygen Principle ” in sections 1A, 1B & 3A of the Civil Procedure Act. The court was referred to Hunker Trading Company Ltd vs Elf Oil Kenya Ltd Civil Application Nai 6/2016.
22) Further that a case belongs to the litigant not to the advocate – and that litigant has the duty to pursue the prosecution of the litigants case –This was the position in Savings & Loans Ltd vs Susan Wanjiru Muritu Nbi (Milimani) HCC No. 397/2002 where the court held inter alia
“For the defendant to be prompted to action by the plaintiff’s determination to execute the decree issued in its favour, is an indictment of the defendant. She had been indolent and taking into account her past conduct in the prosecution of the application to set aside the default judgment that was dismissed by the court, it would be a travesty of justice for the court to exercise its discretion in favour of such a litigant.”
23) On who should bear the costs of the application – the court is referred to section 27 of the CPA, and R vs Rosemary Wairimu Munene Exparte Applicant vs Kururu Dairy Farmers Coop Society Ltd.
Determination
24) I have carefully considered the application before me. the submissions, the rival affidavits and all circumstances of this application.
25) The only issue for determination is whether the applicant has given the sufficient reason for the delay in the filing of the appeal.
26) The proviso to section 79 G states 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.”
27) In addition the appellant must explain the delay as well.
28) In this case the delay – as admitted, was 19 months.
And the reason – that the advocate was not giving the applicant’s updates of their case.
29) In the 1 st place – this is a serious accusation against their previous advocate. That advocate was not given the opportunity to defend himself/or explain why he did not update his clients of the proceedings against them.
30) However – more importantly the applicants do not see their role in all this – they have not taken responsibility for their indolence – who gets sued, for damages, and just sits, for 19 months without following up on their case, without asking their advocate what is going on – who?
31) The applicants were not being candid/forthright with the court, and heaping blame on the former advocate whom they did not join these proceedings does not amount to good and sufficient cause –
32) The applicant’s plead “mistake of counsel” what mistake did the advocate commit?
33) From what the court learns from the respondent, this advocate was in court the whole-time, he defended the suit, he defended the taxation – what mistake?
34) I agree with the respondent that counsel could not have done all this without the instructions from his clients.
Hence, from the authorities cited – the applicants are the owners of their case and they had the duty and obligation to follow up with their advocate.
35) Is there any reason for this court to exercise its discretion in favour of the applicants to extend time to file the appeal?
36) The applicants have not even complied with the interim orders of this court – to pay part of the decretal sum to the respondent. Having not complied with the orders of the court, why would the court grant them other orders?
37) The applicants have not demonstrated that they deserve the equitable orders they seek from this court.
38) The application is without merit and the same is declined – with costs to the respondent.
RULING dated, signed and delivered virtually at Kabarnet High Court this10th July 2026.
HON MUMBUA T MATHEKA
JUDGE
In the presence of :-
CA Momanyi
Ms. Kogo for Kipkulei for the applicant
Ngaywa &Kibet for Respondent
Ruling HCC Misc. APPLICATION E009 of 2025 Page 2 of 2