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4. The deponent averred that as the disputed property is their ancestral land, the emotional attachment and the stakes are very high and further that the delay was because of his indisposition, was not inordinate and has been reasonably explained. He urged the court to consider his application and grant him leave to le the appeal. 5. The application was opposed by way of Grounds of Opposition dated 29th April 2025. In them he opposed the application, rst, as being premature, baseless, frivolous, and amounting to arms of the process of the court. He explained on the ground that the advocate for the applicant was in conduct of the original case whose judgment and decree the applicant intended to appeal against and therefore was aware of their appeal. There was no documentary proof of any incapacitating element that would prevent the applicant from appealing in time. Judgment was delivered on 22nd January 2025 and the instant application dated 7th April 2025 was served on 28th April 2025 which amounted to undue delay hence the applicant was guilty of largess. Further, the reasons as were given in the supporting adavit did not constitute any that could satisfy a court to extend time. He added another ground that the application was not in compliance with the Proviso to Section 79G of the Civil Procedure Act. He explained that no Memorandum of Appeal had been led in court to help it have the opportunity of appreciating that the same was an arguable appeal. Further, no good and sucient reason had been shown by the proposed appellant why she failed to le an appeal within 30 days. The third ground was that the application was premised on the wrong provisions of law which did not relate to admission of appeals out of time. And lastly, the judgment was proper both in law and fact, and the intended appeal did not have any chance of success at all. 6. The application was disposed of by way of written submissions. Only the applicant led theirs. The court nevertheless has to consider the matter on merits. 7. On his part, the Applicant led written submissions dated 22nd August 2025. He gave a brief background of the application which, in summary, was that at the lower Court in Ndhiwa SPMC ELC No. E020 of 2024 whose judgment was delivered on 23rd January 2025 by Hon. Onzere E. M., both parties’ cases succeeded albeit partially. The applicant was aggrieved by the decision and wished to le an appeal. Unfortunately, he fell ill before issuing instructions to Counsel regarding the appeal. It was until the 7th day of April, 2025 when he nally instructed Counsel to appeal. 8. He identied two issues for determination. These were, (i) Whether the applicant is deserving of leave to le an appeal out of time, and (ii) Who bears the cost of this application? 9. On whether he is deserving of leave to le an appeal out of time, he argued that he had given sucient reasons justifying the grant of the application. He relied on Article 40 (6), Article 48 and Article 50 (1) besides Article 159 (2) (d) & (e) and Article 10, all of the Constitution 2010. 10. Further, he relied on Section 79G of the Civil Procedure Act (Cap 21 and the cases of Thuita Mwangi vs Kenya Airways Ltd [2003] eKLR. In it the Court of Appeal set out the factors a court considers before granting leave to le an appeal out of time. They include, the period of delay, reason for the delay, arguability (sic) of the appeal, degree of prejudice that could be suered by the Respondent if the extension is granted and; eect if any on the administration of justice or public interest. He also relied on the decision in Leo Sila Mutiso vs Helen Wangari Mwangi [1999] 2 EA as well as in Bogonko vs Ndege (Civil Application E002 of 2021) [2024] KECA 351. 11. He then argued that the period between 23rd January, 2025 and 7th April, 2025 was barely 3 months after the decision was rendered. He relied further on the case of Mwangi S. Kimenyi vs The Attorney General & Another (Civil Suit Misc. No. 720 Of 2009) [2014] eKLR which discusses on inordinate delay. Further, he cited the Agip (Kenya) Limited vs Highlands Tyres Limited [2001] KLR 630 case https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18592/eng@2025-11-24 2

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where the court held that a delay of 8 months was not inordinate, and in Sagoo v. Bhari [1990] KLR 459 wherein a delay of 5 months was not viewed as inordinate. He summed it that a delay of barely 3 months was not inordinate in our circumstance. 12. About the reason for the delay, he stated that it was due to illness. He dened illness and opined that the Court takes judicial notice that sometimes illnesses can be prolonged and debilitating. He relied on the case of Naphtaly Munyonga v Public Service Commission & Another NRB CA Civil Application No. 278 of 2019 [2020] eKLR. Regarding whether or not the appeal is arguable, he submitted that the parties’ cases had partially succeeded in the lower court. He stated that an arguable appeal does not have to be one that must succeed. He relied on the cases of Kenya Commercial Bank Ltd v Nicholas Ombija [2009] eKLR and Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 others [2013] eKLR. Regarding the degree of prejudice the Respondent might suer if the leave is granted he argued that the appeal being about the right to safeguard property that should be prioritized over the delay. On the eect on the administration of justice he argued that land is critical to economic and social development in addition to being a culturally sensitive issue. In the case of Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] KECA 706 (KLR) and the Court of Appeal case of Oginga v Moko (Civil Appeal (Application) 33 of 2019) [2024] KECA 1830 (KLR). 13. On costs, basing his argument on the case of Ocean Engineering Works Ltd & Another v SBM Bank of Kenya Ltd (Civil Appeal 112 of 2021) [2024] KEELC 4724 (KLR) and Section 27 (1) of the Civil Procedure Act (Cap 21) he submitted that each party should bear their own costs. Analysis & Determination 14. This court has considered the application, the law and the submissions of the applicant. It is of the humble opinion that only two issues lie for determination. The rst one is whether the application is merited. This goes to answer the question whether leave should be granted as prayed. The attendant issue is who to bear the costs of the application. 15. Whether the Applicant should be granted leave to appeal out of time. Section 79G of the Civil Procedure Act provides as follows; Every appeal from a subordinate court to the High Court shall be led within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satises the court that he had good and sucient cause for not ling the appeal in time. 16. The Supreme Court decision cited by the respondent of Nicholas Kiptoo Arap Korir Salat v Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR set out principles to guide the court in the extension of time as :“ The underlying principles a court should consider in exercise of such discretion should include:a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18592/eng@2025-11-24 3

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d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e) Whether there will be any prejudice suered by the respondent if the extension is granted; f) Whether the application has been brought without undue delay.” 17. The Appellant contended that he was ill at the time he ought to have appealed the judgement and as such, the time to le an appeal lapsed. The question is, was the applicant so ill that the illness prevented him from issuing instructions to appeal? Otherwise, if any illness however small or minor would base the reason for a delay in such actions then it would open oodgates to all manner of excuses as to cripple the justice system with myriads of unmerited excuses. 18. It is trite law that he who alleges must prove. Sections 107 and 108 of the Evidence Act provide as follows:107. 108. Burden of Proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 19. In Halsbury’s Laws of England, 4th edition, Volume 17 at paras 13 and 14 state:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he had failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satised. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18592/eng@2025-11-24 4

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20. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the armative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 21. I have carefully considered the facts relied on as against the law. While the delay of as many as eight or ve months has in some instances been viewed as not inordinate, the circumstances of each case are the ones which determine the weight to be placed on the time not observed. In some situations, a delay of even a single day is inordinate. To distinguish the authorities relied on, the Agip case (supra) was in regard to dismissal of a suit for want of prosecution. Timelines given for such an action and the discretion are dierent from the ones where one is required to le an appeal. That was the same issue in the Sagoo case (supra). 22. The Applicant herein has not furnished the court with any proof to corroborate the alleged illness or the correspondences between himself and his advocate requesting that she come to discuss the matter at home. Furthermore, learned counsel for the applicant was seized of the matter all long until it was dismissed. As to the wrong provisions cited, I note that Order 51 Rule 10 of the Civil Procedure Rules provides that no application should be refused for failure to cite the provisions under which it is brought or the correct provisions. Similarly, Article 159(2)(d) of the Constitution 2010 obligates this court to determine matters beyond technicalities. 23. The upshot of the foregoing is that the appellant has failed to satisfy this court as to the reasonableness of the delay in ling the appeal. In the premises, the application is dismissed with no order as to costs to the Respondent. 24. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 24TH DAY OF NOVEMBER 2025 HON. DR. IUR NYAGAKA JUDGE From 12:17 PM, in presence of, Court Assistant: Fiona Mr. Ngani for Adoyo for the Applicant Ms. Oyala for G.S. Okoth for the Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18592/eng@2025-11-24 5

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