1. The Application before me is dated 30/07/2024 is brought under certificate of urgency. It seeks the following orders;
a) Spent.
b) THAT this honorable court be pleased to grant the applicant herein time extension for filing his appeal and upon grant of extension of time herein, the honorable court be pleased to admit the applicant’s memorandum of appeal dated 24/07/2024 being for an appeal against the judgment of the honorable O.A Nyandusi-Resident Magistrate delivered on 21/05/2024 in Makindu Civil Case E201 of 2022 and ruling delivered on 14/05/2024 filed out of time, the same to be deemed duly filed.
c) That this Honourable Court be pleased to stay the intended execution of the Decree issued pursuant to the Judgment of the Honourable O.A Nyandusi – Resident Magistrate delivered on 21/05/ 2024 in Makindu Civil Case E210 of 2022 pending the outcome of the intended Appeal.
d) THAT the costs of this Application abide the outcome of the appeal.
2. The Application is supported by the grounds on its face and the Affidavit of the 1st Applicant sworn on the same day. The gist of the Application is that service of the summons to enter appearance remains disputed and the issue was raised before the trial court. That, the Appellant applied for leave to file defence and defend the case on conditions which he partly met. That, there are salient procedural and legal flaws in the entire conduct of the lower court case and the Appellant was found liable in a mysterious way.
3. The Appellant deponed that he was granted leave to defend the case and he filed his defence but could not raise the thrown away costs of kshs 20,000/=. That, the matter proceeded unprocedurally as there was not proper service of mention and hearing notices. That, he had a previous advocate who assured him that he would attend all court sessions but did not remain conscious to his assurance. That, he was not aware of the date of delivery of final judgment and his advocate was also not aware hence the non-attendance. That, he learnt of the judgment and ruling after the day to file appeal had passed when his advocate sent the same to his WhatsApp on 27/06/2024. The copies are exhibited.
4. He deponed that he advised his advocate to appeal and the advocate remained promising him that he had initiated the process but he (Appellant) came to learn that the advocate never fulfilled the same apart from filing a letter requesting for documents from the lower court. he realized that the advocate was never committed to appeal and was forced to look for the current advocate. A copy of the memorandum of appeal is exhibited.
5. He deponed that by the time he secured the current advocate, time had moved and the previous advocate was reluctant to release the file for unknown reasons. That, the delay in filing the appeal was majorly because the previous advocate failed to comply with instructions and did not advise him on need to appeal, timelines and other legal issues.
6. He deponed that he has applied to enjoin Directline Assurance Company as he had an insurance policy with the company and had fully met his financial obligations. That the company was also served with a letter of intention to sue but they never told him. That, the company was also aware of the lower court case from inception but failed to communicate to him. That, the trial court imputed strange things on him alleging that he had changed goal posts in the relevant application.
The Response
7. The Application was opposed through the Respondent’s Replying Affidavit sworn on 02/09/2024 where she deponed that the Application lacks merit, is an abuse of court process, an afterthought, ill-advised, ill-intended and should be dismissed with costs. That the Appellants were properly served with summons and pleadings but elected not to enter appearance on time hence the entry of interlocutory judgment. That, prior to institution of the suit, the Appellant’s insurance was served with a statutory notice and letter to update on progress of the suit. The same are exhibited as MAN 1 & 2 respectively.
8. She deponed that the 1st Appellant filed an application dated 04/09/2023 under certificate of urgency whereby he sought orders to set aside the interlocutory judgment and leave to defend the suit. That, vide a ruling dated 23/01/2024, the 1st Appellant was granted conditional leave to defend the suit whereby he was to pay throw away costs of kshs 20,000/=, failure to which the interlocutory judgment would stand reinstated. That the 1st Appellant was duly notified of the same and the relevant email is exhibited as MAN 3.
9. She deponed that as rightly admitted in the supporting affidavit, the 1st Appellant failed to pay the throw away costs and has not done so to date despite being aware of the orders. That, the 1st Appellant is therefore seeking justice with filthy hands. That, the matter was fixed for mention to confirm the defendant’s compliance with orders issued on 23/01/2024 but the 1st Appellant did not attend court. That, the matter was fixed for formal proof on 27/02/2024 and the Appellants as well as their insurer were duly notified of the date. The hearing notices are exhibited as MAN 3,4 & 5.
10. She deponed that after the formal proof, the matter was fixed for mention on 05/03/2024 to confirm filing of submissions and judgment was reserved for 26/03/2024. That, on 10/03/2024, the 1st Appellant filed another application seeking to arrest the delivery of the judgment and enlargement of time to comply with the orders of the ruling of 23/01/2024. That, the application was dismissed with costs on 14/05/2024 and the matter was reserved for judgment on the main suit which information was duly communicated to one Mr. Kongani who was on record for the 1st Appellant.
11. Consequently, it was deponed that the Appellants were duly notified of all the proceedings and the allegations that they were not aware are baseless and only intended to invoke sympathy from the court. That, the interested party was not a party to the suit in the trial court hence cannot be made a party at the appellate stage. That, the instant application and intended appeal are omnibus and incapable of being properly adjudicated hence should be dismissed with costs.
12. It was deponed that the 1st Appellant cannot and should not heap any blame on his former advocates as he is the one who frustrated them by failing to comply with the orders of the court on payment of throw away costs. That, he made his bed and must lie on it. That, the 1st Appellant will not suffer any prejudice as the intention is to commence execution by way of a declaratory suit against his insurer. That, the 1st Appellant is an obstructionist of justice as the sole purpose of the application is to barricade the looming execution.
13. The Application was canvassed through written submissions.
The Applicant’s Submissions
14. The Appellant relied on Kenya Revenue Authority & 2 others -vs- Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling) for the threshold to be meet and conditions that guide the court when considering whether or not to grant a prayer for extension of time.
15. The Appellant submitted that he explained the reason for the delay to be the indolence of the previous advocate and that the 2nd Appellant knew nothing about the case until the appeal became due. Reliance was placed on Habo Agencies Limited -vs- Wilfred Odhiambo Musingo [2015] eKLR where the court stated;
“..it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation. Courts have always emphasized that the parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. In Mwangi v Kariuki (199) 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.”
16. It was submitted that the Appellants instructed their current advocate to file this Application after realizing that the previous advocate was not taking action within reasonable time frames to salvage the matter, and that the delay to file the Appeal was not inordinate. Reliance was placed onTego -vs- Tego (Miscellaneous Civil Application E005 of 2023) [2024] KEHC 1501 (KLR) (8 February 2024) (Ruling) where the court stated;
“The reason the applicant has given for not filing the appeal as ordered by the court is that he had left the matter in the hands of his advocates who informed him that the application to file the appeal out of time had been allowed and that he had filed the appeal. That he later came to learn that no appeal had been filed.
I have noted that the second application for leave to file appeal out of time was filed six months after the time granted by the court to file the appeal had lapsed. This shows indolence on the part of the applicant. Even though the applicant had an advocate it was his duty to make a follow up with his advocate to ensure that the appeal was filed within the time granted by the court. The question is whether this amounted to inordinate delay……
It is my finding that the applicant was let down by his former advocates who failed to file the appeal within the time granted by the court. I do not think that it is proper for the applicant to be punished for a wrong committed by his former advocates. I also do not think that the delay of six months in filing the appeal is inordinate as to cause the applicant to be denied an opportunity of being heard on appeal. The respondent has not
shown that the delay has caused him any prejudice in as far as the hearing and determination of the appeal is concerned. In my view justice can still be done despite the delay.”
17. It was submitted that whereas in the above case the court noted that the delay of 6 months was not inordinate, the delay herein was far less than 6 months. It was contended that the applicants have demonstrated that they were condemned without being heard as appropriately required by law. That the 2nd Appellant was never served with anything throughout the entire proceedings and the 1st Appellant was not served with crucial documents including submissions relied on heavily in delivery of the judgment and notices for hearing and mentions.
18. It was submitted that the Applicants suffered prejudice as their right to fair hearing had been breached contrary to constitutional provisions, which prejudice has the capacity to cause the Appellants further prejudice for failure to defend themselves if their appeal is not heard.
The Respondent’s Submissions
19. The Respondent submitted that the rules of procedure as enshrined in the Civil Procedure Act and Civil Procedure Rules 2010 do not exist for cosmetic purposes but rather serve a crucial role in the administration of justice. Reliance was placed on Archipas Mwakidoi -vs- Issac Chikunyio Mwamuye [2021] eKLR where the court stated;
“The court inevitably in considering the question of prejudice, the scale doe tilt more towards in favor of the Respondent. In my view, there are no good reasons for this court to exercise discretion for extension of time. Sometimes one wonders what is the purpose of the rules which provide a time table for conduct of litigation which is never strictly complied with on flimsy grounds. To my mind, where the applicant fails to place before the court good and sufficient evidence to extend time, then there is no need for this court to expend its energy in considering the other grounds under the rubric of the interest of justice. The principles guiding the courts discretion weighed on the scale of balance of convenience and compelling rights of the parties’ tilt more to the execution of the judgment of the trial court. The court will not act merely because a party has a right of appeal.”
20. It was submitted that the jurisdiction of the court to extend the period for a party to file an appeal is purely discretionary and should be exercised judiciously considering the peculiar circumstances of each case. Reliance was placed on LSG Lufthansa Service Europa/Africa Gmbh & Anor -vs- Eliab Muturi Mwangi (practicing in the name and style of Muturi Mwangi & Co. Advocates) [2019] eKLR where the court stated;
“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, the reason for the delay, chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted.”
21. Further reliance was placed on County Executive of Kisumu -vs- County Government of Kisumu & 8 Others [2017] eKLR for the submission that; the whole period of delay should be declared and explained satisfactorily.
22. It was submitted that the reasons given by the 1st Appellant are not merited at all because his advocates were well served with the requisite dates including the formal proof date and he elected not to attend. That, the Applicant and his advocate were well aware of all the proceedings in the matter. It was contended that the 1st Applicant did not produce a WhatsApp screenshot to prove that he was notified of the judgment on 27/06/2024. That, he was also silent on when he became aware of the ruling of 14/05/2024 which means that he was fully aware but did not prefer any appeal. It was contended that in a normal advocate-client relationship, the advocate ordinarily updates his/her client on the status of the matter after every session hence the 1st Appellant must have been notified of the judgment date. Reliance was placed on Rachel Oduma Juma -vs- Luke Omollo Okwiri & Anor (2019) eKLR where the court stated;
“I am constrained to determine the dispute based on the available evidence. The available evidence is that judgment was delivered on 30th May 2019. The Applicant was given 15 days stay of execution pending appeal. The advocate for the applicant wrote to the applicant immediately for intention to appeal. The same appear not to have been given. The applicant has engaged different advocates and appears to blame the previous advocate. Cases of parties changing advocates and blaming their former advocates are on the rise. It comes at a time when the mistake of advocates can be visited on the client. Especially where it appears not to have taken serious interest in the matter.”
23. It was submitted that it is not always the case that a mistake of advocate should not be visited upon his/her clients. That, where both the advocate and his client exhibit indolence such as in the instant case, the Appellant ought to bear the mistakes of the advocate it appointed. Reliance was placed on Said Sweilem Gheithan Saanum -vs- The Commissioner of Lands [2015] eKLR where the Court of Appeal stated;
“The court cannot be invited to turn a blind eye in the face of such inordinate delay and in the absence of sufficient explanation. Likewise, it cannot be fashionable for parties to blame their advocates and disclaim that the mistakes made by their advocates, who they have themselves appointed cannot be visited upon them.”
24. It was submitted that the 1st Applicant was granted leave and opportunity by the trial court to defend the suit but he failed to comply with the orders on payment of throw away costs hence he cannot claim that he was denied an opportunity to be heard.
25. It was submitted that the intended appeal is not arguable and has no chances of success for reasons, inter alia, that there is not provision of law which allows a defendant to add an interested party. That, the only avenue for a defendant to add another party is through third party proceedings. Another reason is that the applicant seeks for extension of time to file appeal from a ruling and judgment which were delivered at different intervals hence totally different factors for consideration. Third reason is that the ruling on 14/05/2024 had very little impact as it only declined to extend time for payment of the throw away costs and by the time it was delivered, the orders issued in the earlier ruling on 23/01/2024 were already in place and the interlocutory judgment had already been reinstated. Consequently, it was submitted that even if the intended appeal succeeds in setting aside the ruling of 14/05/2024, the interlocutory judgment will still be in place and the matter cannot start denovo.
26. It was submitted that the 2nd Applicant did not defend the suit and it was dismissed by the trial court. That, the allegation of not being served with summons and pleadings was overtaken by events as there was no appeal against dismissal of the suit.
27. It was submitted that if the orders sought in this application are granted, there will be massive prejudice upon the Respondent as it will set back all her efforts to prosecute the suit. That she sustained severe injuries three years ago and is yet to get any compensation. It was contended that justice delayed is justice denied.
28. Having looked at the Application, the supporting affidavits the replying affidavit and the rival submissions, the only issue for determination is whether the Application is merited;
Analysis and Determination
29. The Applicant has moved this court for extension of time in order to appeal against the ruling delivered on 14/05/2024 and judgment delivered on 21/05/2025 in Makindu Civil Case No. E201 of 2022.
30. The factors to be considered by a court when determining an application for extension of time have been aptly captured by the parties in their submissions to be;
a) Extension of time is not a right of a 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-to-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 respondents if the extension is granted;
f) Whether the application has been brought without undue delay; and
g) Whether in certain cases, like election petitions, public interest should be a consideration for extending time”
31. Annexture MAN 3 is an email from the Respondent’s advocate to one Mr. Kongani and its contents are as follows;
“We refer to the above captioned matter and the ruling of the court delivered on 23/01/2024.
Kindly note that the court allowed your client’s application dated 4.9.2023 on the following conditions;
1) The 1st Defendant statement of defence to be deemed to be properly on record upon the 1st Defendant paying the requisite court fees.
2) The filed statement of defence to be served upon the plaintiff within 7 days of the date of the ruling.
3) The 1st defendant to pay the plaintiff throw away costs of the sum of kshs 20,000/= within 7 days of the ruling.
4) In default of any of the conditions outlined in 1-3 hereinabove, the interlocutory judgment against the 1st Defendant to stand reinstated without any further reference to court.
5) The matter fixed for pre-trial directions on the 6.2.2024”
32. From the wording of the email, it is clear that the applicant’s application to set aside the interlocutory judgment was allowed with conditions. The applicant’s complaint about not being served with summons to enter appearance is therefore neither here nor there as it was sorted when he was allowed to defend the suit.
33. The Applicant has acknowledged that he did not pay the throw away costs and the reason given is that he was not able to raise the same. It is therefore clear that he was fully aware of the trial court ruling of 23/01/2024. I do not have the trial court record but I have seen the ruling of 14/05/2024 which addressed the Applicant’s failure to pay the throw away costs as follows;
“From 23.01.24 to 20.03.24, almost 2 months later, the applicant could not satisfactorily explain why he could not approach court earlier to explain the difficulties in paying the throw away costs, he instead chose to abscond court. Further, no evidence has been attached to satisfy the court that he reached out to his counterparts in a bid to explain the difficulties he was having in obeying the court orders.
I agree with the submissions by the respondent that documentary evidence attached as medical documents with the applicant’s supporting affidavit reveal that NHIF paid the bill. The bill was paid on 19.02.24 way after the 7 days the order stipulated. I therefore find that no monetary inconvenience was occasioned on the applicant as far as these documents are concerned. I also agree that the applicant attached no proof of marriage to the alleged wife who was sick. This court can only believe him based on cogent proof and not mere allegations..”
34. The suit was filed on 21/12/2022 and annexture MAN 1 is a letter from the Respondent’s advocate showing that the Appellant and his insurer were aware of the matter. The letter is dated 04/07/2023 and was received by Directline Assurance Company on 05/07/2023. It informed the recipients that an interlocutory judgment had been entered and the matter was scheduled for formal proof. Ideally, it is the insurance company which instructs advocates to defend a matter on behalf of its insured but that was not the case here.
35. After the interlocutory judgment was entered, the Appellant rushed to court and applied to set aside the judgment. His application was granted on conditions which he ignored until about two months later. I said ignored because the extract from the trial court ruling shows that the Appellant could not explain why he had not paid the throw away costs within the 7 days stipulated in the order. The reasons given were interrogated by the trial court and found to be wanting. The was also no explanation as to why the Appellant had not approached court earlier to explain the difficulties, he was experiencing in raising the amount. The matter had been scheduled for mention on 05/03/2024 to confirm compliance but the Appellant did not show up yet that was a perfect opportunity for him to explain any challenges that he was experiencing.
36. After formal poof, the matter was scheduled for judgment and the Appellant showed up again with an application to arrest the judgment and extend time for him to pay the throw away costs. In my view, the Appellant was not cooperating to ensure the smooth flow of the matter but he was always available whenever an adverse action was taken against him. Upon being given an opportunity to defend the matter, the Appellant should have been very diligent but he relaxed and went back to his ‘wait and see’ attitude. Indeed, the Appellant is seeking an equitable remedy with unclean hands.
37. Further, this is an omnibus application as it is seeking extension of time to appeal against the ruling delivered on 14/05/2024 and judgment delivered on 21/05/2025. The intended appeal is also omnibus as it will be against the ruling and judgment. In Pyaralalmhandbheru Rajput -vs- Barclays Bank & Others: Civil Case No. 38 of 2004, the learned Judge had this to say about such and I agree;
“There is no doubt the application is an all-cure, omnibus application. It is a wide net cast over a large body of water, and out of all the lake or sea, creatures caught in it, there will be one or two edible crabs or fish. It is not quite so. An omnibus application is incapable of proper adjudication by the court for each of the reliefs sought apart from being governed by different rules, is also subject to long established and different judicial principles which counsel need to bring to the attention of, and the court needs to consider before granting the entire relief sought. This alone makes the plaintiff’s application incurably defective, and a candidate for striking out.”
38. The Appellant has also heaped a lot of blame on his previous advocates yet he is guilty of failing to pay the throw away costs as ordered by court. The appellant failed to address his non-compliance with a court order. He did not even produce any correspondence where he communicated his alleged financial struggle to his advocate with instructions to explain the same to the court. He simply disappeared and resurfaced after an adverse action had been taken by the court.
39. In my view, the blunders in this matter are fully on the shoulders of the Appellant as he has never taken a keen interest in it especially after being allowed to defend the same. I am inclined to agree with the Respondent that the Appellant is an obstructionist of justice who wants the proceedings to be conducted at his convenience according to his terms.
40. The upshot is that the Appellant does not deserve the exercise of discretion in his favor.
41. I find that the application is not merited. It is dismissed with costs to the respondent.
42. Orders accordingly.
Dated, signed and delivered via CTS on 11th July 2025
Mumbua T Matheka
Judge
delayed upload cts issues
a) Spent.
b) THAT this honorable court be pleased to grant the applicant herein time extension for filing his appeal and upon grant of extension of time herein, the honorable court be pleased to admit the applicant’s memorandum of appeal dated 24/07/2024 being for an appeal against the judgment of the honorable O.A Nyandusi-Resident Magistrate delivered on 21/05/2024 in Makindu Civil Case E201 of 2022 and ruling delivered on 14/05/2024 filed out of time, the same to be deemed duly filed.
c) That this Honourable Court be pleased to stay the intended execution of the Decree issued pursuant to the Judgment of the Honourable O.A Nyandusi – Resident Magistrate delivered on 21/05/ 2024 in Makindu Civil Case E210 of 2022 pending the outcome of the intended Appeal.
d) THAT the costs of this Application abide the outcome of the appeal.
2. The Application is supported by the grounds on its face and the Affidavit of the 1st Applicant sworn on the same day. The gist of the Application is that service of the summons to enter appearance remains disputed and the issue was raised before the trial court. That, the Appellant applied for leave to file defence and defend the case on conditions which he partly met. That, there are salient procedural and legal flaws in the entire conduct of the lower court case and the Appellant was found liable in a mysterious way.
3. The Appellant deponed that he was granted leave to defend the case and he filed his defence but could not raise the thrown away costs of kshs 20,000/=. That, the matter proceeded unprocedurally as there was not proper service of mention and hearing notices. That, he had a previous advocate who assured him that he would attend all court sessions but did not remain conscious to his assurance. That, he was not aware of the date of delivery of final judgment and his advocate was also not aware hence the non-attendance. That, he learnt of the judgment and ruling after the day to file appeal had passed when his advocate sent the same to his WhatsApp on 27/06/2024. The copies are exhibited.
4. He deponed that he advised his advocate to appeal and the advocate remained promising him that he had initiated the process but he (Appellant) came to learn that the advocate never fulfilled the same apart from filing a letter requesting for documents from the lower court. he realized that the advocate was never committed to appeal and was forced to look for the current advocate. A copy of the memorandum of appeal is exhibited.
5. He deponed that by the time he secured the current advocate, time had moved and the previous advocate was reluctant to release the file for unknown reasons. That, the delay in filing the appeal was majorly because the previous advocate failed to comply with instructions and did not advise him on need to appeal, timelines and other legal issues.
6. He deponed that he has applied to enjoin Directline Assurance Company as he had an insurance policy with the company and had fully met his financial obligations. That the company was also served with a letter of intention to sue but they never told him. That, the company was also aware of the lower court case from inception but failed to communicate to him. That, the trial court imputed strange things on him alleging that he had changed goal posts in the relevant application.
The Response
7. The Application was opposed through the Respondent’s Replying Affidavit sworn on 02/09/2024 where she deponed that the Application lacks merit, is an abuse of court process, an afterthought, ill-advised, ill-intended and should be dismissed with costs. That the Appellants were properly served with summons and pleadings but elected not to enter appearance on time hence the entry of interlocutory judgment. That, prior to institution of the suit, the Appellant’s insurance was served with a statutory notice and letter to update on progress of the suit. The same are exhibited as MAN 1 & 2 respectively.
8. She deponed that the 1st Appellant filed an application dated 04/09/2023 under certificate of urgency whereby he sought orders to set aside the interlocutory judgment and leave to defend the suit. That, vide a ruling dated 23/01/2024, the 1st Appellant was granted conditional leave to defend the suit whereby he was to pay throw away costs of kshs 20,000/=, failure to which the interlocutory judgment would stand reinstated. That the 1st Appellant was duly notified of the same and the relevant email is exhibited as MAN 3.
9. She deponed that as rightly admitted in the supporting affidavit, the 1st Appellant failed to pay the throw away costs and has not done so to date despite being aware of the orders. That, the 1st Appellant is therefore seeking justice with filthy hands. That, the matter was fixed for mention to confirm the defendant’s compliance with orders issued on 23/01/2024 but the 1st Appellant did not attend court. That, the matter was fixed for formal proof on 27/02/2024 and the Appellants as well as their insurer were duly notified of the date. The hearing notices are exhibited as MAN 3,4 & 5.
10. She deponed that after the formal proof, the matter was fixed for mention on 05/03/2024 to confirm filing of submissions and judgment was reserved for 26/03/2024. That, on 10/03/2024, the 1st Appellant filed another application seeking to arrest the delivery of the judgment and enlargement of time to comply with the orders of the ruling of 23/01/2024. That, the application was dismissed with costs on 14/05/2024 and the matter was reserved for judgment on the main suit which information was duly communicated to one Mr. Kongani who was on record for the 1st Appellant.
11. Consequently, it was deponed that the Appellants were duly notified of all the proceedings and the allegations that they were not aware are baseless and only intended to invoke sympathy from the court. That, the interested party was not a party to the suit in the trial court hence cannot be made a party at the appellate stage. That, the instant application and intended appeal are omnibus and incapable of being properly adjudicated hence should be dismissed with costs.
12. It was deponed that the 1st Appellant cannot and should not heap any blame on his former advocates as he is the one who frustrated them by failing to comply with the orders of the court on payment of throw away costs. That, he made his bed and must lie on it. That, the 1st Appellant will not suffer any prejudice as the intention is to commence execution by way of a declaratory suit against his insurer. That, the 1st Appellant is an obstructionist of justice as the sole purpose of the application is to barricade the looming execution.
13. The Application was canvassed through written submissions.
The Applicant’s Submissions
14. The Appellant relied on Kenya Revenue Authority & 2 others -vs- Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (10 February 2022) (Ruling) for the threshold to be meet and conditions that guide the court when considering whether or not to grant a prayer for extension of time.
15. The Appellant submitted that he explained the reason for the delay to be the indolence of the previous advocate and that the 2nd Appellant knew nothing about the case until the appeal became due. Reliance was placed on Habo Agencies Limited -vs- Wilfred Odhiambo Musingo [2015] eKLR where the court stated;
“..it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation. Courts have always emphasized that the parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. In Mwangi v Kariuki (199) 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.”
16. It was submitted that the Appellants instructed their current advocate to file this Application after realizing that the previous advocate was not taking action within reasonable time frames to salvage the matter, and that the delay to file the Appeal was not inordinate. Reliance was placed onTego -vs- Tego (Miscellaneous Civil Application E005 of 2023) [2024] KEHC 1501 (KLR) (8 February 2024) (Ruling) where the court stated;
“The reason the applicant has given for not filing the appeal as ordered by the court is that he had left the matter in the hands of his advocates who informed him that the application to file the appeal out of time had been allowed and that he had filed the appeal. That he later came to learn that no appeal had been filed.
I have noted that the second application for leave to file appeal out of time was filed six months after the time granted by the court to file the appeal had lapsed. This shows indolence on the part of the applicant. Even though the applicant had an advocate it was his duty to make a follow up with his advocate to ensure that the appeal was filed within the time granted by the court. The question is whether this amounted to inordinate delay……
It is my finding that the applicant was let down by his former advocates who failed to file the appeal within the time granted by the court. I do not think that it is proper for the applicant to be punished for a wrong committed by his former advocates. I also do not think that the delay of six months in filing the appeal is inordinate as to cause the applicant to be denied an opportunity of being heard on appeal. The respondent has not
shown that the delay has caused him any prejudice in as far as the hearing and determination of the appeal is concerned. In my view justice can still be done despite the delay.”
17. It was submitted that whereas in the above case the court noted that the delay of 6 months was not inordinate, the delay herein was far less than 6 months. It was contended that the applicants have demonstrated that they were condemned without being heard as appropriately required by law. That the 2nd Appellant was never served with anything throughout the entire proceedings and the 1st Appellant was not served with crucial documents including submissions relied on heavily in delivery of the judgment and notices for hearing and mentions.
18. It was submitted that the Applicants suffered prejudice as their right to fair hearing had been breached contrary to constitutional provisions, which prejudice has the capacity to cause the Appellants further prejudice for failure to defend themselves if their appeal is not heard.
The Respondent’s Submissions
19. The Respondent submitted that the rules of procedure as enshrined in the Civil Procedure Act and Civil Procedure Rules 2010 do not exist for cosmetic purposes but rather serve a crucial role in the administration of justice. Reliance was placed on Archipas Mwakidoi -vs- Issac Chikunyio Mwamuye [2021] eKLR where the court stated;
“The court inevitably in considering the question of prejudice, the scale doe tilt more towards in favor of the Respondent. In my view, there are no good reasons for this court to exercise discretion for extension of time. Sometimes one wonders what is the purpose of the rules which provide a time table for conduct of litigation which is never strictly complied with on flimsy grounds. To my mind, where the applicant fails to place before the court good and sufficient evidence to extend time, then there is no need for this court to expend its energy in considering the other grounds under the rubric of the interest of justice. The principles guiding the courts discretion weighed on the scale of balance of convenience and compelling rights of the parties’ tilt more to the execution of the judgment of the trial court. The court will not act merely because a party has a right of appeal.”
20. It was submitted that the jurisdiction of the court to extend the period for a party to file an appeal is purely discretionary and should be exercised judiciously considering the peculiar circumstances of each case. Reliance was placed on LSG Lufthansa Service Europa/Africa Gmbh & Anor -vs- Eliab Muturi Mwangi (practicing in the name and style of Muturi Mwangi & Co. Advocates) [2019] eKLR where the court stated;
“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, the reason for the delay, chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted.”
21. Further reliance was placed on County Executive of Kisumu -vs- County Government of Kisumu & 8 Others [2017] eKLR for the submission that; the whole period of delay should be declared and explained satisfactorily.
22. It was submitted that the reasons given by the 1st Appellant are not merited at all because his advocates were well served with the requisite dates including the formal proof date and he elected not to attend. That, the Applicant and his advocate were well aware of all the proceedings in the matter. It was contended that the 1st Applicant did not produce a WhatsApp screenshot to prove that he was notified of the judgment on 27/06/2024. That, he was also silent on when he became aware of the ruling of 14/05/2024 which means that he was fully aware but did not prefer any appeal. It was contended that in a normal advocate-client relationship, the advocate ordinarily updates his/her client on the status of the matter after every session hence the 1st Appellant must have been notified of the judgment date. Reliance was placed on Rachel Oduma Juma -vs- Luke Omollo Okwiri & Anor (2019) eKLR where the court stated;
“I am constrained to determine the dispute based on the available evidence. The available evidence is that judgment was delivered on 30th May 2019. The Applicant was given 15 days stay of execution pending appeal. The advocate for the applicant wrote to the applicant immediately for intention to appeal. The same appear not to have been given. The applicant has engaged different advocates and appears to blame the previous advocate. Cases of parties changing advocates and blaming their former advocates are on the rise. It comes at a time when the mistake of advocates can be visited on the client. Especially where it appears not to have taken serious interest in the matter.”
23. It was submitted that it is not always the case that a mistake of advocate should not be visited upon his/her clients. That, where both the advocate and his client exhibit indolence such as in the instant case, the Appellant ought to bear the mistakes of the advocate it appointed. Reliance was placed on Said Sweilem Gheithan Saanum -vs- The Commissioner of Lands [2015] eKLR where the Court of Appeal stated;
“The court cannot be invited to turn a blind eye in the face of such inordinate delay and in the absence of sufficient explanation. Likewise, it cannot be fashionable for parties to blame their advocates and disclaim that the mistakes made by their advocates, who they have themselves appointed cannot be visited upon them.”
24. It was submitted that the 1st Applicant was granted leave and opportunity by the trial court to defend the suit but he failed to comply with the orders on payment of throw away costs hence he cannot claim that he was denied an opportunity to be heard.
25. It was submitted that the intended appeal is not arguable and has no chances of success for reasons, inter alia, that there is not provision of law which allows a defendant to add an interested party. That, the only avenue for a defendant to add another party is through third party proceedings. Another reason is that the applicant seeks for extension of time to file appeal from a ruling and judgment which were delivered at different intervals hence totally different factors for consideration. Third reason is that the ruling on 14/05/2024 had very little impact as it only declined to extend time for payment of the throw away costs and by the time it was delivered, the orders issued in the earlier ruling on 23/01/2024 were already in place and the interlocutory judgment had already been reinstated. Consequently, it was submitted that even if the intended appeal succeeds in setting aside the ruling of 14/05/2024, the interlocutory judgment will still be in place and the matter cannot start denovo.
26. It was submitted that the 2nd Applicant did not defend the suit and it was dismissed by the trial court. That, the allegation of not being served with summons and pleadings was overtaken by events as there was no appeal against dismissal of the suit.
27. It was submitted that if the orders sought in this application are granted, there will be massive prejudice upon the Respondent as it will set back all her efforts to prosecute the suit. That she sustained severe injuries three years ago and is yet to get any compensation. It was contended that justice delayed is justice denied.
28. Having looked at the Application, the supporting affidavits the replying affidavit and the rival submissions, the only issue for determination is whether the Application is merited;
Analysis and Determination
29. The Applicant has moved this court for extension of time in order to appeal against the ruling delivered on 14/05/2024 and judgment delivered on 21/05/2025 in Makindu Civil Case No. E201 of 2022.
30. The factors to be considered by a court when determining an application for extension of time have been aptly captured by the parties in their submissions to be;
a) Extension of time is not a right of a 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-to-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 respondents if the extension is granted;
f) Whether the application has been brought without undue delay; and
g) Whether in certain cases, like election petitions, public interest should be a consideration for extending time”
31. Annexture MAN 3 is an email from the Respondent’s advocate to one Mr. Kongani and its contents are as follows;
“We refer to the above captioned matter and the ruling of the court delivered on 23/01/2024.
Kindly note that the court allowed your client’s application dated 4.9.2023 on the following conditions;
1) The 1st Defendant statement of defence to be deemed to be properly on record upon the 1st Defendant paying the requisite court fees.
2) The filed statement of defence to be served upon the plaintiff within 7 days of the date of the ruling.
3) The 1st defendant to pay the plaintiff throw away costs of the sum of kshs 20,000/= within 7 days of the ruling.
4) In default of any of the conditions outlined in 1-3 hereinabove, the interlocutory judgment against the 1st Defendant to stand reinstated without any further reference to court.
5) The matter fixed for pre-trial directions on the 6.2.2024”
32. From the wording of the email, it is clear that the applicant’s application to set aside the interlocutory judgment was allowed with conditions. The applicant’s complaint about not being served with summons to enter appearance is therefore neither here nor there as it was sorted when he was allowed to defend the suit.
33. The Applicant has acknowledged that he did not pay the throw away costs and the reason given is that he was not able to raise the same. It is therefore clear that he was fully aware of the trial court ruling of 23/01/2024. I do not have the trial court record but I have seen the ruling of 14/05/2024 which addressed the Applicant’s failure to pay the throw away costs as follows;
“From 23.01.24 to 20.03.24, almost 2 months later, the applicant could not satisfactorily explain why he could not approach court earlier to explain the difficulties in paying the throw away costs, he instead chose to abscond court. Further, no evidence has been attached to satisfy the court that he reached out to his counterparts in a bid to explain the difficulties he was having in obeying the court orders.
I agree with the submissions by the respondent that documentary evidence attached as medical documents with the applicant’s supporting affidavit reveal that NHIF paid the bill. The bill was paid on 19.02.24 way after the 7 days the order stipulated. I therefore find that no monetary inconvenience was occasioned on the applicant as far as these documents are concerned. I also agree that the applicant attached no proof of marriage to the alleged wife who was sick. This court can only believe him based on cogent proof and not mere allegations..”
34. The suit was filed on 21/12/2022 and annexture MAN 1 is a letter from the Respondent’s advocate showing that the Appellant and his insurer were aware of the matter. The letter is dated 04/07/2023 and was received by Directline Assurance Company on 05/07/2023. It informed the recipients that an interlocutory judgment had been entered and the matter was scheduled for formal proof. Ideally, it is the insurance company which instructs advocates to defend a matter on behalf of its insured but that was not the case here.
35. After the interlocutory judgment was entered, the Appellant rushed to court and applied to set aside the judgment. His application was granted on conditions which he ignored until about two months later. I said ignored because the extract from the trial court ruling shows that the Appellant could not explain why he had not paid the throw away costs within the 7 days stipulated in the order. The reasons given were interrogated by the trial court and found to be wanting. The was also no explanation as to why the Appellant had not approached court earlier to explain the difficulties, he was experiencing in raising the amount. The matter had been scheduled for mention on 05/03/2024 to confirm compliance but the Appellant did not show up yet that was a perfect opportunity for him to explain any challenges that he was experiencing.
36. After formal poof, the matter was scheduled for judgment and the Appellant showed up again with an application to arrest the judgment and extend time for him to pay the throw away costs. In my view, the Appellant was not cooperating to ensure the smooth flow of the matter but he was always available whenever an adverse action was taken against him. Upon being given an opportunity to defend the matter, the Appellant should have been very diligent but he relaxed and went back to his ‘wait and see’ attitude. Indeed, the Appellant is seeking an equitable remedy with unclean hands.
37. Further, this is an omnibus application as it is seeking extension of time to appeal against the ruling delivered on 14/05/2024 and judgment delivered on 21/05/2025. The intended appeal is also omnibus as it will be against the ruling and judgment. In Pyaralalmhandbheru Rajput -vs- Barclays Bank & Others: Civil Case No. 38 of 2004, the learned Judge had this to say about such and I agree;
“There is no doubt the application is an all-cure, omnibus application. It is a wide net cast over a large body of water, and out of all the lake or sea, creatures caught in it, there will be one or two edible crabs or fish. It is not quite so. An omnibus application is incapable of proper adjudication by the court for each of the reliefs sought apart from being governed by different rules, is also subject to long established and different judicial principles which counsel need to bring to the attention of, and the court needs to consider before granting the entire relief sought. This alone makes the plaintiff’s application incurably defective, and a candidate for striking out.”
38. The Appellant has also heaped a lot of blame on his previous advocates yet he is guilty of failing to pay the throw away costs as ordered by court. The appellant failed to address his non-compliance with a court order. He did not even produce any correspondence where he communicated his alleged financial struggle to his advocate with instructions to explain the same to the court. He simply disappeared and resurfaced after an adverse action had been taken by the court.
39. In my view, the blunders in this matter are fully on the shoulders of the Appellant as he has never taken a keen interest in it especially after being allowed to defend the same. I am inclined to agree with the Respondent that the Appellant is an obstructionist of justice who wants the proceedings to be conducted at his convenience according to his terms.
40. The upshot is that the Appellant does not deserve the exercise of discretion in his favor.
41. I find that the application is not merited. It is dismissed with costs to the respondent.
42. Orders accordingly.
Dated, signed and delivered via CTS on 11th July 2025
Mumbua T Matheka
Judge
delayed upload cts issues