Mwirichia v Gitonga

Case No. E002 of 2023, and the court found that the suit was res judicata; dissatised with the said judgment, the applicant led Meru ELC Appeal E054 of 2024, and in a judgment delivered on 5th June 2025; the court rightfully found that the applicant’s suit was res judicata and an abuse of the court process hence it dismissed the appeal with costs to the respondent; the delay in ling the intended appeal has not been satisfactorily explained and is an afterthought; the appeal is frivolous and has no arguable grounds as it merely seeks to re-litigate matters conclusively determined by the superior court and the lower court; litigation must come to an end; as any further delay will prejudices him as he is entitled to the fruits of his judgments. 4. Neither party led submissions. 5. I have considered the application, the adavit in support and the replying adavit. The issue for determination is whether to grant the applicant leave to le and serve the record of appeal out of time. 6. Rule 4 of the Rules allows the Court to exercise discretion to extend the time limited by the Rules for doing any act authorized or required by the Rules. The court is expected to exercise the unfettered discretion judiciously not with sympathy, capriciously or whimsically while at the same time considering, the length of time, the reasons for the delay, and the likely prejudice to the other. In Salat v Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) the Supreme Court had this to say on the issue of extension of time; “ … it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant. … we derive the following as the underlying principles that a Court should consider in exercising such discretion: 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 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. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court; 5. whether there will be any prejudice suered by the respondents, if 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.” https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2225/eng@2025-12-19 2

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7. The same principle is enunciated in Towett v Kibaru & Another (Civil Application E191 of 2025) [2025] KECA 1650 (KLR) (9 October 2025) as follows: “ Rule 4 of the Court of Appeal Rules, 2022 empowers this Court to extend time for the doing of any act authorized or required by the Rules. The power is discretionary and should be exercised judicially upon good cause being shown. Some of the factors to bear in mind include the period of delay; the reason for the delay; the degree of prejudice the respondent stands to suer; justice should be administered without undue regard to procedural technicalities and that justice should not be delayed. (see Njeri Njoroge v Joseph Maina Gichuhi & another [2018] eKLR)” 8. The Court has not been shown the letter bespeaking the proceedings, neither has it been explained why counsel for the applicant did not copy the letter to the respondent’s counsel in line with the proviso to rule 84 which would have allowed ling of the record of appeal within 30 days of the receipt of the proceedings and the certicate of delay. 9. Though having raised the concern above I am minded of the holding in Abdirahman Abdi also known as Abdirahman Muhumed Abdi v Safi Petroleum Products Ltd. & 6 Others, Civil Application No. Nai. 173 of 2010, where a notice of appeal was served on the respondent out of time and without leave of the court, upon being asked to strike it out, this Court (Omolo, Bosire and Nyamu, JJA.) observed that; “ The overriding objective in civil litigation is a policy issue which the court invokes to obviate hardship, expense, delay and to focus on substantive justice… In the days long gone the court never hesitated to strike out a notice of appeal or even an appeal if it was shown that it had been lodged out of time regardless of the length of delay. The enactment of Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya, and later, Article 159 (2) (d) of the Constitution of Kenya, 2010, changed the position. The former provisions introduced the overriding objective in civil litigation in which the court is mandated to consider aspects like the delay likely to be occasioned, the cost and prejudice to the parties should the court strike out the oending document. In short, the court has to weigh one thing against another for the benet of the wider interests of justice before coming to a decision one way or the other. Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suered by the innocent party and weigh it against the prejudice to be suered by the oending party if the court strikes out its document. The court in that regard exercises judicial discretion.” 10. I nd that the applicant has explained the short delay suciently. I have also taken cognizance that delays have become order of the day for various reasons including lack of adequate resources, volume of work etc. and as a result preparation of proceedings take some time to be ready and certied. 11. In the circumstances the application is allowed. The record of appeal be led and served within 21 days of the date of this ruling. 12. Costs will abide by the outcome of the appeal. DATED AND DELIVERED AT NYERI THIS 19TH DAY OF DECEMBER, 2025. ALI-ARONI https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2225/eng@2025-12-19 3

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......................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2225/eng@2025-12-19 4

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