Benard Wamakwa Wanyonyi v Festo Munyasi Mauko & Vincent Sakwa Mahava

Benard Wamalwa Wanyonyi, seeks orders for leave to file an appeal out Page 2 of 6

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of time against the judgment of the Environment and Land Court at Bungoma delivered on 11th March 2024. 2. The application is supported by the affidavit of the Applicant. He avers that he was aggrieved by the judgment of the lower court, which dismissed his suit and allowed the Respondent’s counterclaim. He states that he was unable to file the appeal within the prescribed 60 days due to his ill health and the failure of his previous advocates to inform him of the judgment. He states that he only became aware of the adverse judgment on 15th January 2026. The application is unopposed. 3. I have considered the application, the affidavit in support, the annexed Memorandum of Appeal, and the applicable law. The sole issue for determination is whether the Applicant has satisfied the Court to grant leave to file an appeal out of time. 4. The principles that guide this Court in exercising such discretion were settled in the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 1 EA 69). The Court held that the discretion is Page 3 of 6

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intended to avoid injustice or hardship resulting from accidental omission. The factors to consider are: the length of the delay; Page 4 of 6

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the reason for the delay; the chances of the appeal succeeding; and the degree of prejudice to the respondent. 5. In regard to the length of delay, the judgment was delivered on 11th March 2024. The instant application was filed on 3 rd February 2026. This represents a delay of approximately 22 months. I must acknowledge that this delay is prolonged and inexcusable on the face of it. Strictly speaking, a delay of nearly two years requires a very compelling explanation. 6. On reasons for delay, the Applicant attributes the delay to ill health and the negligence of his previous advocate. Regarding advocate negligence, the law is settled in Mwangi v Kenya Airways Ltd [2003] KLR 486, that a litigant generally bears the burden of his advocate’s mistakes. Furthermore, the Applicant has not annexed any medical records to substantiate his claim of incapacity. In normal circumstances, these reasons would be insufficient to excuse a delay of this magnitude. 7. However, the exercise of discretion is not based solely on the length of delay or the excuse offered. The Court must also consider whether the appeal raises triable issues. The Page 5 of 6

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Applicant doesn't need to demonstrate that the appeal must Page 6 of 6

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succeed. The threshold is lower: the Applicant must show that the appeal is arguable; that it raises a bona fide issue that ought to be heard by the Court. 8. In this instance, I have perused the Memorandum of Appeal. The Applicant challenges the learned Judge’s finding that he held the suit land in trust for the Respondent’s father and the finding that he fraudulently changed his name. These are serious allegations that go to the root of the Applicant’s proprietary rights. The issues raised in the draft Memorandum of Appeal are not frivolous or vexatious; they are substantial questions of law and fact. As held in Thuita Mwangi v Kenya Airways Ltd [2003] 1 KLR, if an application for extension of time raises arguable points that require consideration by the Court, the Court may be inclined to exercise its discretion in favour of the applicant to avoid shutting the doors of justice on a technicality. The purpose of an appeal is to correct errors; if the Applicant can show a potential error occurred, he is entitled to his day in Court, provided that granting the extension will not cause an injustice that cannot be compensated by costs. Page 7 of 6

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9. On whether the Respondent is likely to suffer any prejudice, the application is unopposed. Neither the Respondent nor the Interested Party has filed a replying affidavit to demonstrate that they would suffer prejudice that cannot be cured by an award of costs. The subject matter is land, and the orders sought primarily affect the parties' rights to it. In the circumstances, I find that the Respondent can be adequately compensated by costs for the delay. 10. Weighing the prolonged delay against the triable issues raised, I am persuaded that the interests of justice outweigh the technical breach of the rules. It would be unjust to deny the Applicant an opportunity to ventilate his grievances on appeal solely based on the delay, especially where the respondent has not claimed prejudice. 11. Consequently, I find merit in the application. The Notice of Motion dated 3rd February 2026 is allowed in the following terms: a) Leave is hereby granted to the Applicant to file and serve a Record of Appeal out of time. Page 8 of 6

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b) The Record of Appeal to be filed and served within 14 (Fourteen) days from the date of this Ruling. c) Costs of this application to abide by the outcome of the appeal. Dated and delivered at Kakamega this 22nd day of May, 2026. R. NGETICH ……………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 9 of 6

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