This ruling is in respect of the Applicant’s Notice of Motion application dated 18th July, 2025 which seeks the following orders:
a. Spent
b. THAT the Applicant be allowed to file an Appeal from the Judgment of the Honourable G.O Kimanga made on the 2nd February, 2016 in Civil Suit No. 1246 of 2007-Mohamed Juma Dzimba vs Swaleh Abdalla Hassan out of time.
c. Spent
d. THAT there be a stay of execution of that Judgment pending the hearing and determination of filed Appeal. (sic)
e. THAT the costs of this application be provided for.
The application is supported by the annexed affidavit of Swaleh Abdalla Hassan, the Applicant, sworn on 18th July, 2025. He deponed in 2007 Civil Case No 1246 of 2007 was filed against him by the Respondent. He deponed that he was never heard and his application seeking to set aside the Judgment was never argued as the file went missing in January, 2017. It was his deposition that he filed Civil Appeal No 185 of 2016 which was struck out on 29th June, 2023 because he had filed it out of time.
It was his deposition that at the time he was acting in person and he made an application seeking to extend time. The Applicant deponed that he is facing eviction and urged the court to grant him leave to hear his application and his intended appeal.
Mohammed Juma Dzimba, the Respondent filed a Replying Affidavit sworn on 12th November, 2025. He deponed that the time difference of ten years amounts to inordinate delay and no reason has been given as to why the appeal could not be filed within a reasonable time. The Respondent deponed that the applicant admits that the present application is res-judicata as the applicant made a similar application that was dismissed.
RESPONDENT’S SUBMISSIONS
Counsel for the Respondent filed submissions dated 15th January, 2026 and identified the following issues for determination:
a. Whether the Application dated 18th July 2025 is res-judicata?
b. Whether the Applicant satisfies the requirements of extending time to file an appeal?
c. Who bears the cost of the suit?
On the first issue, counsel submitted that the Applicant is inviting the court to sit on appeal on the ruling by Justice Angima in ELC MISC E086 of 2024 dated 27th February, 2025 as opposed to appealing the same. Counsel submitted that the present application is res-judicata as the issues therein have already been heard and determined. Counsel relied on Section 7 of the Civil Procedure Act and the cases of Independent Electoral & Boundaries Commission vs Maina Kiai & 5 others [2017] eKLR and John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR.
On the second issue, counsel submitted that the applicant had sufficient time to file the appeal but squandered the opportunity without any good reason and he was deliberately not taking steps in the matter. Counsel submitted that the Respondent shall be greatly prejudiced when the present matter is reopened through an appeal which has no chances of success. Reliance was placed on the cases of Salat vs Independent Electoral and Boundaries Commission and 7 others 2024 KESC 12 (KLR) and Geoffrey Muriungi and Another vs John Rukunga M’Imonyo (Suing as legal representative of the Esatate of Kinoti Simon Rukunga (deceased) (2016) eKLR.
On the third issue, counsel submitted that all the events in the matter have been occasioned by the Applicant and hence he should pay costs.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether this court should allow the Applicant to file an appeal out of time?
b. Whether this court should issue stay of execution orders pending the hearing and determination of the filed Appeal?
The principles to be considered by the Court in exercising the discretion on whether to extend time, as delineated by Supreme Court’s decision in NICHOLAS KIPTOO ARAP KORIR SALAT Vs. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 7 OTHERS [2014] eKLR, are as follows:
“1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
A party that seeks extension of time to file an appeal out of time must satisfy the above principles, noting that it is not a right, but an equitable remedy, which is at the discretion of the court.
The Applicant in his supporting affidavit contends that he had previously sought to extend time and he annexed the copy of the application which was marked as SAH-5. The court has looked at the Applicants Notice of Motion application dated 29th December, 2016 where he sought the following order: “The Appellant appeal against the Civil suit no 1246 of 2007 of MOHAMED JUMA DZIMBA versus SWALEH ABDALLA HASSAN be heard out of time pending the interparty hearing of this application.” The Applicant goes on to depone that his appeal was struck out on 29th June, 2023 because he had filed it out of time.
The Respondent on the other hand contends that the Applicant’s present application is res judicata since the Applicant had made a similar application that was dismissed. The Respondent has annexed a Ruling of Hon Justice Y.M Angima dated 27th February, 2025 which was in respect of a Notice of Motion application dated 6th November, 2024 between the parties herein. This court notes that the applicant sought similar orders as the ones in the application under consideration by this court. The court in the ruling dated 27th February, 2025 conclusively determined the issue of extension of time and found that the Applicant has not demonstrated sufficient cause within the meaning of Section 79 G of the Civil Procedure Act to warrant an extension of time. In the Supreme Court case of John Florence Maritime Services Ltd & another vs Cabinet Secretary Transport and Infrastructure & 3 others (2021) eKLR the court held as follows:
“The doctrine of res judicata was based on the principle of finality which was a matter of public policy. The principle of finality was one of the pillars upon which the judicial system was founded and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensured that litigation came to an end, and the verdict duly translated into fruit for one party, and liability for another party, conclusively.
This court finds that the Applicant’s Notice of Motion application dated 18th July, 2025 is res-judicata and the same is struck out. Costs are awarded to the Respondent.
a. Spent
b. THAT the Applicant be allowed to file an Appeal from the Judgment of the Honourable G.O Kimanga made on the 2nd February, 2016 in Civil Suit No. 1246 of 2007-Mohamed Juma Dzimba vs Swaleh Abdalla Hassan out of time.
c. Spent
d. THAT there be a stay of execution of that Judgment pending the hearing and determination of filed Appeal. (sic)
e. THAT the costs of this application be provided for.
The application is supported by the annexed affidavit of Swaleh Abdalla Hassan, the Applicant, sworn on 18th July, 2025. He deponed in 2007 Civil Case No 1246 of 2007 was filed against him by the Respondent. He deponed that he was never heard and his application seeking to set aside the Judgment was never argued as the file went missing in January, 2017. It was his deposition that he filed Civil Appeal No 185 of 2016 which was struck out on 29th June, 2023 because he had filed it out of time.
It was his deposition that at the time he was acting in person and he made an application seeking to extend time. The Applicant deponed that he is facing eviction and urged the court to grant him leave to hear his application and his intended appeal.
Mohammed Juma Dzimba, the Respondent filed a Replying Affidavit sworn on 12th November, 2025. He deponed that the time difference of ten years amounts to inordinate delay and no reason has been given as to why the appeal could not be filed within a reasonable time. The Respondent deponed that the applicant admits that the present application is res-judicata as the applicant made a similar application that was dismissed.
RESPONDENT’S SUBMISSIONS
Counsel for the Respondent filed submissions dated 15th January, 2026 and identified the following issues for determination:
a. Whether the Application dated 18th July 2025 is res-judicata?
b. Whether the Applicant satisfies the requirements of extending time to file an appeal?
c. Who bears the cost of the suit?
On the first issue, counsel submitted that the Applicant is inviting the court to sit on appeal on the ruling by Justice Angima in ELC MISC E086 of 2024 dated 27th February, 2025 as opposed to appealing the same. Counsel submitted that the present application is res-judicata as the issues therein have already been heard and determined. Counsel relied on Section 7 of the Civil Procedure Act and the cases of Independent Electoral & Boundaries Commission vs Maina Kiai & 5 others [2017] eKLR and John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR.
On the second issue, counsel submitted that the applicant had sufficient time to file the appeal but squandered the opportunity without any good reason and he was deliberately not taking steps in the matter. Counsel submitted that the Respondent shall be greatly prejudiced when the present matter is reopened through an appeal which has no chances of success. Reliance was placed on the cases of Salat vs Independent Electoral and Boundaries Commission and 7 others 2024 KESC 12 (KLR) and Geoffrey Muriungi and Another vs John Rukunga M’Imonyo (Suing as legal representative of the Esatate of Kinoti Simon Rukunga (deceased) (2016) eKLR.
On the third issue, counsel submitted that all the events in the matter have been occasioned by the Applicant and hence he should pay costs.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether this court should allow the Applicant to file an appeal out of time?
b. Whether this court should issue stay of execution orders pending the hearing and determination of the filed Appeal?
The principles to be considered by the Court in exercising the discretion on whether to extend time, as delineated by Supreme Court’s decision in NICHOLAS KIPTOO ARAP KORIR SALAT Vs. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 7 OTHERS [2014] eKLR, are as follows:
“1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
A party that seeks extension of time to file an appeal out of time must satisfy the above principles, noting that it is not a right, but an equitable remedy, which is at the discretion of the court.
The Applicant in his supporting affidavit contends that he had previously sought to extend time and he annexed the copy of the application which was marked as SAH-5. The court has looked at the Applicants Notice of Motion application dated 29th December, 2016 where he sought the following order: “The Appellant appeal against the Civil suit no 1246 of 2007 of MOHAMED JUMA DZIMBA versus SWALEH ABDALLA HASSAN be heard out of time pending the interparty hearing of this application.” The Applicant goes on to depone that his appeal was struck out on 29th June, 2023 because he had filed it out of time.
The Respondent on the other hand contends that the Applicant’s present application is res judicata since the Applicant had made a similar application that was dismissed. The Respondent has annexed a Ruling of Hon Justice Y.M Angima dated 27th February, 2025 which was in respect of a Notice of Motion application dated 6th November, 2024 between the parties herein. This court notes that the applicant sought similar orders as the ones in the application under consideration by this court. The court in the ruling dated 27th February, 2025 conclusively determined the issue of extension of time and found that the Applicant has not demonstrated sufficient cause within the meaning of Section 79 G of the Civil Procedure Act to warrant an extension of time. In the Supreme Court case of John Florence Maritime Services Ltd & another vs Cabinet Secretary Transport and Infrastructure & 3 others (2021) eKLR the court held as follows:
“The doctrine of res judicata was based on the principle of finality which was a matter of public policy. The principle of finality was one of the pillars upon which the judicial system was founded and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensured that litigation came to an end, and the verdict duly translated into fruit for one party, and liability for another party, conclusively.
This court finds that the Applicant’s Notice of Motion application dated 18th July, 2025 is res-judicata and the same is struck out. Costs are awarded to the Respondent.