Kalinga & another v Sulubu

d. The Court grants an order to stay the execution of the judgment, decree, and all related consequential orders issued by Hon. D. Sitati (SRM) on August 26, 2024, in Kili Chief Magistrate's Court Civil Case No. 396 of 2018; John Masha Sulubu vs. Tsuma Chirume and Mary Charles Kalinga, pending the hearing and resolution of the appeal. e. The Court to issue a temporary injunction against the Respondent, his agents, servants, and anyone acting on his behalf from encroaching upon, trespassing, developing, leasing, disposing of, selling, charging, transferring, or otherwise dealing with plot title number 493B at Mabirakani, Kili County, measuring 35 ft by 110 ft, pending the hearing and determination of this application. f. The Court to issue a temporary injunction against the Respondent, his agents, servants, and anyone acting on his behalf, from encroaching upon, trespassing, developing, leasing, disposing of, selling, charging, transferring, or otherwise dealing with plot title number 493B at Mabirakani, Kili County, measuring 35 ft by 110 ft, pending the hearing and determination of the appeal. g. The costs of this application should be provided for. 2. The application is supported by adavits sworn by Applicant Mary Charles Kalinga, deposited on July 15, 2025, and August 7, 2025, respectively. 3. Respondent John Masha Sulubu objected to the application through his replying adavit, sworn on July 25, 2025. 4. I received written submissions from the learned counsel for the applicant, Mr. Atonga. I also appreciate the submissions of the learned counsel for the Respondent, Mr. Kinaro, which greatly contributed to addressing the issues raised in the application. 5. Based on the materials and submissions before me, the issues for this court to decide are whether to allow the rm of Sethna Tonga & Company Advocates to appear on record for the applicants after judgment, whether to grant an extension of time to le an appeal, whether to issue an injunction, and who should bear the costs of the application. 6. The entry of Sethna & Company advocates on record for the Applicants is uncontested and is granted. 7. The judgment in this case was issued on August 26, 2024. The Applicants cited two reasons for the delay in ling their appeal: their former advocates did not appear in court for the judgment and did not notify the applicants until July 12, 2025. In their supplementary adavit, sworn on August 7, 2025, by Mary Charles Kalinga, the Applicants blame the Respondent for failing to serve them with a judgment notice on August 26, 2024. The respondent states that the decree being appealed was issued on that date by the trial court, Hon. D. Sitati, Senior Resident Magistrate. The appeal should have been led by September 26, 2024, but was led approximately 11 months late. The Respondent argues that the Appellants must satisfactorily explain this delay. 8. A court may grant an extension to le an appeal out of time if the applicant shows good and sucient cause for the delay, along with a reasonable explanation. Courts will consider factors such as the length of the delay, the reason behind it, the likelihood of success in the appeal, and any harm to the respondent. Applications for extensions are made at the court's discretion and do not guarantee rights; instead, they oer an equitable remedy to a deserving party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18610/eng@2025-12-16 2

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9. 10. In the Supreme Court’s decision (M.K. Ibrahim and S.C. Wanjala SCJJ) in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others [2014] eKLR, the court held 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 seeking an extension of time bears the burden of establishing a sucient basis for the court’s satisfaction. (3) Whether the court should exercise its discretion to extend time depends on the specics of each case. (4) There must be a reasonable cause for the delay, and the delay should be explained satisfactorily to the court.” There must be some material before the Court to enable its discretion to be exercised properly. See Odunga J. in Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR, where the court observed that: “ In an application for extension of time, where the Court is being asked to exercise discretion, there must be some material before the Court to enable its discretion to be so exercised. Once there is non-compliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour, and the rule is that where there is no explanation, there shall be no indulgence. See Ratman v Cumarasamy [1964] 3 All ER 933; Savill v Southend Health Authority [1995] 1 WLR 1254 at 1259." 11. Section 79(g) of the Civil Procedure Act states that an appeal from a Lower Court to the High Court must be led within thirty days of the date of the decree. It states 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.” 12. In this case, the order being appealed was issued on August 26, 2024, by the Trial Court Hon. D. Sitati, SRM. The appeal to this court should have been led by September 26, 2024. However, the Memorandum of Appeal in the present case was led on July 15, 2025, which is approximately 11 months late. 13. The applicants argue that they were never served with the notice of judgment and claim there was a delay in receiving the court proceedings. From the record, the Judgment Notice dated August 19, 2024, was issued by the Court Administrator to all advocates and litigants, informing them that the judgments in the listed cases would be delivered by Hon. D. Sitati (SRM) on Monday, August 26, 2024, at 9:00 am. One of the cases included in the Judgment Notice was CMCELC 396 of 2018, John Masha Sulubu v Tsuma Chirume Tsuma & Another. The Judgment Notice was submitted as annexure "JMS4" in the Replying Adavit. The court's notice, dated August 19, 2024, contradicts the applicants' claims that the judgment was delivered without prior notice to them or their representatives. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18610/eng@2025-12-16 3

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14. I nd that the applicants have provided no credible explanation for their failure to appeal within the legal time limits from August 26, 2024, to July 15, 2025, when this appeal and application were led. There is nothing from the applicants' former advocate indicating that they failed to inform the Applicants of the judgment dated August 26, 2024. 15. Therefore, the Applicants have not met the criteria for the court to exercise its discretion to extend the appeal deadline beyond the statutory period. The claim that the applicants' former advocates failed to inform them of the judgment dated August 26, 2024, is unsubstantiated, as there is no evidence, such as correspondence, to support it. 16. Regarding whether to issue an injunction and stay following the review of the Memorandum of Appeal and the judgment by the lower court, the Applicants are not in possession or occupation of the suit property. It is the Respondent who is in occupation and possession of the suit property. The Decree dated August 26, 2024, injuncts the Appellants from trespassing or encroaching onto the suit property. It is an injunctive decree. Therefore, there is nothing to stay. 17. No exceptional circumstances have been demonstrated in this case to warrant the issuance of injunctive or stay orders of the decree dated 26 August 2024. 18. The application led on July 14, 2025, is hereby dismissed with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 16, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Atonga for the Appellant Ms. Mbae for the Respondent Happy: Court Assistan https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18610/eng@2025-12-16 4

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