RULING
(On whether the applicant should be granted leave to appeal out of time)
The application
1. The applicant filed instant Notice of Motion dated 8th April 2025, and brought it under certificate of urgency. The applicant sought ORDERS that:
a) …Spent
b) This honourable court be pleased to grant leave to the applicant to file an appeal out of time against the ruling of Hon. Naomi Wairimu SPM delivered on 5th December 2024.
c) The cost of the application be provided for.
2. The application was premised on the grounds set out on the face of the application as well as the depositions in the Supporting Affidavit deponed by the 1st applicant, Solomon Nyamwaya. The applicants argue that the trial court, on 9th April 2024, delivered judgment in Migori Magistrate’s Court Case No. ELC 26 A of 2024 wherein the suit therein was dismissed. The applicants, who were not parties in the said suit, was aggrieved by the said application and filed an application in the trial court. They prayed that the suit be reopened and they be joined in the suit. He stated that the trial court dismissed the application on 5th December 2024. They now wish to appeal the ruling albeit out of time.
3. They maintained that the it would be in the interest of justice that the orders sought be granted and it would not prejudice the respondents. They also stated that the application had been brought without unreasonable delay, had high chances of success besides being brought in extreme good faith.
4. The 1st applicant, swore an Affidavit on 8th April 2025. He deponed that he had the authority to swear the affidavit on behalf of the other the applicants. His affidavit merely reiterates the contents of the application save to add that the 1st applicant gave the reasons for the delay and annexed several annexures to the application.
5. The reasons for the delay were that the impugned ruling was rendered in the absence of both the applicants and his counsel. The applicants also stated that they could not file an appeal in time since they filed an application before this case, albeit erroneously and later withdrew the said application.
6. The 1st applicant further maintained that the interests of justice would favor allowing the application. He added that the respondents would not suffer any prejudice should the court allow the application. It was also his contention that the intended appeal had a high chance of success and that it had been brought in good faith.
Replying Affidavit
7. The 1st respondent filed a Replying Affidavit dated 4th June 2025. It was his contention that the applicant’s application is defective and an abuse of the court process since the applicants were not parties to the judgment they intend to appeal against and they had not been granted leave to be joined so as to acquire locus to appeal. He also deponed that the instant application was merely intended to help the judgment debtor, who already lost the suit, relitigate the same.
8. The 1st respondent also deponed that that the applicants sought to appeal against a ruling rendered on 5th December 2024, which period is way beyond the statutorily mandated period for instituting appeals.
9. Further, the 1st respondent maintained that he applicants had not offered a reasonable explanation as to why they did not file an appeal within time and added that the applicants had not demonstrated what loss they would suffer should the application not be allowed.
10. He reiterated that the application is merely intended to help the judgment debtor reventilate issues that have already been litigated and also deponed that the applicants had not demonstrated that they had a case with high chances of success.
11. In addition to the foregoing, the 1st respondent deponed that the applicants’ application is a replica of the 6th respondent’s application dated 14th January 2025 in both form and spirit, which application did not see the light of day. He deponed that the said application was being brought under the banner of the applicants with the judgment debtor being presented as one of the applicants so as to confuse the court.
12. The 1st respondent deponed SOLOMON OMONDI NYAMWAYA, the 1st respondent herein filed Migori ELC MSC. APPL. NO 20 OF 2024 confirming that he was aware of the impugned ruling and that he had no intention to appeal. The 1st respondent also deponed that the instant application is frivolous and an abuse of the court process, only brought to afford the judgment debtor a forum to reventilate issues.
Submissions
13. The application was canvassed by way of written submissions. The applicants filed their submissions dated 23rd April 2025. They identified one issue for determination: whether the applicant’s prayer for extension of time is merited. They emphasised that the aim of the justice system is to hear and determine matters fully and added that parties seeking justice from courts should not be locked out.
14. The applicants submitted that the delay in filing the appeal was only 4 months and maintained that such delay was not intentional. They reiterated that when the impugned ruling was delivered, both the applicants and their advocates were not in court. The applicants also stated that they erroneously made an application before seeking leave to appeal but the same was withdrawn, an act they consider to have occasioned their delay in filling their appeal.
15. The applicants invoked this court’s jurisdiction under section 79G of the civil procedure act and relied on Hanam Signh & others v Mistri [1971] EA 122 to submit that mistake of counsel may amount to sufficient cause. They also relied on Andrew Kiplangat Chemaringo v Paul Kipkorir Kibet [2018] Eklr to submit that there is no set maximum or minimum duration of delay and added that the court’s duration may be exercised provided that a party offers a plausible and satisfactory explanation for the delay.
16. The applicants concluded that their application is merited and urged the court to allow the same.
17. The respondents filed their submissions dated 10th June 2025. They identified two issues for determination, namely, whether the court should exercise its discretion to grant the applicants leave to file their appeal out of time; and who should pay costs of the application.
18. They relied Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR, the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others
[2014] eKLR and Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, to outline the considerations that courts must have when determining whether or not to exercise their determination to allow an applicant to file an appeal out of time.
19. They submitted that applicants made the instant application 120 days after the impugned was made. They contended that no reasonable reason had been given for the said delay and state that the allegation that the applicants had erroneously filed an application before this court was not proved since what applicants filed was a miscellaneous appeal np. E20 of 2024.
20. Similarly, they maintained that filling an application in the wrong court cannot be a a justifiable reason for the grant of the orders sought since ignorance of the law is does not a defence.
21. In addition to the above stated, the respondents submitted that the judgment whose case the applicants are attempting to reopen has already been executed as titles have already been issued and subdivision of the land in question to the beneficiaries is ongoing. They maintained that the applicants have not locus standi to institute the intended appeal or the reason that they were not parties to the suit. As such, the said applicants have not demonstrated what prejudice they would suffer should the application not be allowed.
22. Finally, they concluded that the applicants had not satisfied conditions for extension of time.
23. On the issue of costs, the respondents relied on section 27 of the Civil Procedure Act urged the court to find that they (the respondents) are entitled to costs of the application.
Issues, analysis and determination
24. The relevant issues for determination in the instant application are: whether the application is meritorious and, who should bear the cost of the application.
25. The impugned ruling was rendered on 5th December 2024 and the instant application made on 8th April 2025 which period is 124 days afterwards. It is clear to me and everybody else that the applicant did not comply with the provisions of Section 79G of the Civil Procedure Act which for appeals from the lower court to be filed within 30 days from the date of the ruling/judgment. However, the proviso to the said Section offers a silver lining to litigants who may for good cause delay in filing their appeals.
26. In considering whether or not to exercise discretion to enlarge time so as to allow a party to appeal out time, courts have given guidance on the various factors that should inform this decision as illustrated below:
27. In Adana v Ogora (Civil Appeal E006 of 2021) [2025] KEHC 1462 (KLR) (12 February 2025) (Ruling), the court held that:
‘‘In considering the issue of timely filing of the appeal which is germane to this case, this court is guided that discretion to extend time is unfettered. There is no limit to the number of factors the Court would consider so long as they are relevant. These factors include but are not limited to the period of delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, or whether the matter raises issues of public importance. All are
28. In Edith Gichungu Koine v Stephen Njagi Thoiti [2014] eKLR, the Court of Appeal reasoned that:
‘‘8. I have anxiously considered the application, the affidavits on record and the submissions of counsel. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst
29. The Supreme Court in Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR (supra), determined that:
30. “It follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the courts should consider “all the circumstances of the case” including:
a) the interests of the administration of justice;
b) whether the application for relief has been made promptly;
c) whether the failure to comply was intentional;
d) whether there is a good explanation for the failure;
e) the extent to which the party in default has complied with other rules, practice directions and court orders;
f) whether the failure to comply was caused by the party or his legal representative;
g) the effect which the failure to comply had on each party; and
h) the effect which the granting of relief would have on each party.
1. I have carefully considered that reasons advanced by the applicants. I have concluded that the said reasons do not constitute a good cause and a satisfactory explanation for their delay in filing their intended appeal. Further, I arrive at the inescapable conclusion that the applicant is not honest and since he who comes to equity must come with clean hands, I am afraid equity is not going to aid him. The following are the reasons I hold that he is not candid. Whereas he states that he was not aware of the impugned ruling, he has not told the court that the outcome of his application had not been communicated on the Case Tracking System. Additionally, he does not dispute that the counsel handling his matter on his behalf, filed the application he would later withdraw. He filed it two weeks before the expiry of the period for appeal. If he instructed counsel to file an appeal and instead he filed an application for something else, that is not a mistake that should prejudice the Respondents. In any event I doubt if the applicant did not know the prayers that the application said to have been withdrawn was about because he deponed to the application in support of it. Thus, he knew and vouched for each and every paragraph of the content of the application and the depositions in his affidavit. He cannot abate and reprobate. To do so points to dishonesty and attempts to mislead this court.
31. Whereas the applicants maintained that they were not ware of the ruing of the court since the same was rendered in their absence, the court notes that noting prevented the applicants from checking the CTS to confirm the status of their case. Parties are responsible for their cases and should always follow up the progress of such cases as was held by the Supreme Court in Karinga Gaciari & 11 others v Ndege Kabibi Kimanga & another, Application No. E004 of 2023, where the court determined that:
‘‘[9] Having Considered the application, affidavit in response and submissions filed, we now opine as follows:
(i) ...........
(ii) Whereas mistakes of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated any efforts or due diligence, through evidence or correspondence of the follow up with the Advocates or to pursue their rights as we found in George Kang’ethe Waruhiu v Esther Nyamweru Munene & another Civil Application No.18 of 2020 [2021] eKLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not (emphasis added).
32. I am equally convinced that the applicants were aware of the impugned ruling since they filed ‘MIGORI ‘MISC. APPEAL NO. E20 OF 2024’’ before this court, two weeks after the ruling of the trial court rendered on 5th December 2024. I need not say more.
33. Concerning the reason that the applicant erroneously filed an application before this court, which was later withdrawn, the applicants have not annexed the said application to their application save for the first page which only shows the parties to the alleged application. As was held in Karinga Gaciari & 11 others v Ndege Kabibi Kimanga & another (supra), a party cannot just blame their advocates for all manner of mistakes.
34. The upshot of the foregoing is that the instant application has no merit whatsoever. Accordingly, their application lacks merits and is hereby dismissed.
35. Regarding the costs of the application, they shall be borne by the applicants.
36. Orders accordingly
Ruling dated signed and delivered virtually via the Teams Platform this 21st day of May 2026.
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. Ochieng Advocate for the Applicant
Ms. Ogutu for Mboya for the 1st to 5th Respondents