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ELCPartially AllowedNotice of Motion dated 25th September 2025· [2026] KEELC 2416 (KLR)

Malombo t/a OM Robinson & Company Advocates v Kainembabazi (Sued as the Executrix of the Estate of John Wycliffe Rutagyemwa Kazzora - Deceased) (Civil Appeal E066 of 2025) [2026] KEELC 2416 (KLR)

High Court of Kenya
30 April 2026
1,070 words in judgment
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The bottom line

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Kenya's High Court allowed an advocate to appeal five months late because he was pursuing review and recusal applications the whole time.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th September 2025, Robinson Onyango Malombo trading as O.M. Robinson & Company Advocates, the Appellant/Applicant, sought leave to appeal out of time against a Ruling of the Deputy Registrar delivered on 11th April 2025, and admission of a Memorandum of Appeal filed outside the prescribed time. The ruling under challenge had disallowed the Applicant's ex-parte application for a prohibitory/inhibition order in aid of execution of a money decree issued on 13th March 2025 against the estate of the late John Wyclifie Rutagyemwa Kazzora, attaching two immovable properties registered in the deceased's name. The Respondent, the Executrix of the estate, did not enter appearance and the application proceeded unopposed. The court considered Section 79G of the Civil Procedure Act and the Supreme Court's criteria in Nicholas Kiptoo Salat v IEBC on extension of time. Noting that the Applicant had pursued a review application within four days of the ruling and thereafter sought the Deputy Registrar's recusal, whose ruling was delivered on 27th August 2025, the court found that although the application arrived about five months after the ruling, the delay had been explained to its satisfaction and arose from factors beyond the Applicant's control. The court allowed the motion in terms of prayers 2 and 3, granted leave to appeal, admitted the Memorandum of Appeal, and gave the Applicant fourteen days to lodge it, making no order as to costs.

Key legal issues

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01

Whether the delay of about five months in filing the intended appeal was adequately explained

Holding

The delay was explained to the satisfaction of the court and arose from factors beyond the Applicant's control

Reasoning

The court considered the sequence of events: within four days of the Deputy Registrar's ruling the Applicant filed a review application; after it was heard and reserved for ruling, he sought the Deputy Registrar's recusal; the recusal ruling of 27th August 2025 refused recusal and directed the review to be presented before another Deputy Registrar. The court found these circumstances explained the approximately five-month delay and that the application was therefore merited, allowing prayers 2 and 3.

p. 3
02

The applicable principles for extension of time under Section 79G of the Civil Procedure Act

Holding

The court applied the Salat criteria: extension of time is discretionary and equitable, requiring an explained delay, absence of prejudice, and absence of undue delay

Reasoning

The court adopted the seven-factor test from Nicholas Kiptoo Salat v IEBC, including that extension of time is not a right, that the applicant bears the burden of laying a basis, that the delay must be reasonably explained to the court's satisfaction, and that prejudice to the respondent and undue delay are relevant considerations applied case by case.

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Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay
  • Under Section 79G of the Civil Procedure Act, an appeal may be admitted out of time if the appellant shows good and sufficient cause for the delay

Court orders

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  1. 1.Leave granted to the Appellant to appeal the Ruling of the Deputy Registrar delivered on 11th April 2025 outside the prescribed time
  2. 2.Memorandum of Appeal dated 25th September 2025 admitted out of time
  3. 3.Applicant given 14 days from the date of the ruling to lodge the Memorandum of Appeal
  4. 4.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure Rules, 2010Order 22 Rules 10, 48 & 68

Cases cited (1)

  • Nicholas Kiptoo Salat v Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR
On appeal from
High Court of Kenya (Mombasa)
Jurisdiction invoked
Section 79G of the Civil Procedure Act, Cap 21 (inherent jurisdiction to extend time for filing appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Malombo t/a OM Robinson & Company Advocates v Kainembabazi (Sued as the Executrix of the Estate of John Wycliffe Rutagyemwa Kazzora - Deceased) (Civil Appeal E066 of 2025) [2026] KEELC 2416 (KLR)", Case Analysis (2026). Notice of Motion dated 25th September 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2416/eng@2026-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.