Mtava & another v Kibiru

5. Based on the materials and submissions placed before me, the issues I frame for the court's determination are whether the court should grant the applicant leave to le an appeal out of time and who should bear the costs of the application. 6. The applicants contend that the court delivered judgment on 30 April 2025. The applicants later discovered that the copy of the judgment provided to them was missing pages and requested that their advocates, Kombe & Kombe Co. Advocates, request certied copies of the judgment and proceedings for the purposes of ling an appeal, as they were dissatised with the judgment of the subordinate court. On 11 June 2025, the rm of Kombe & Kombe Co. Advocates requested certied copies of the judgment and proceedings after the 30 days provided for ling appeals emanating from subordinate courts had expired. The applicants obtained certied copies of the judgment and proceedings on 14 July 2025, because the court le had been misplaced at the Court Registry and was nally traced on 8 July 2025. The applicants also deposed that they decided to retain new counsel and needed time to raise the funds to pay the quoted legal fees. They were able to instruct new advocates, Ms. Lilian Mwangi & Company Advocates, on 10 July 2025, to appeal against the judgment of the subordinate court. The advocates had to wait for copies of the judgment and proceedings to be available before ling this application on 15 July 2025. The respondent stated in their replying adavit that the applicants only followed up on the judgment and proceedings on June 11, 2025, and are now trying to le an appeal to delay payment for the land. She argues that the appeal is intended to prevent her from receiving the land repayment and claims that the applicants do not have a valid appeal. Additionally, the respondent asserts that her cause of action was led within the time allowed, as she had not yet taken possession of the land. 7. Section 79G of the Civil Procedure Act 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 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.” 8. Section 79G of the Civil Procedure Act requires an Applicant to provide compelling and substantial reasons for the Court to consider a request for extra time. This clause requires the applicant to clearly justify why they did not le the appeal within the set deadlines. 9. In the case of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the Court of Appeal, in considering an application for extension of time and leave to le the Notice of Appeal out of time, stated the following: “ … it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for ling an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted.” 10. In this case, 55 days had elapsed since the subordinate court issued its judgment. The delay was attributed to missing pages of the judgment and the appointment of new counsel. This could not be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18623/eng@2025-12-10 2

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said to constitute a clear explanation for the delay, warranting the exercise of discretion to extend the time within which to appeal. 11. Among the reasons that may persuade a court to extend time is whether the appeal is arguable. A review of the Memorandum of Appeal indicates that among the grounds of appeal are contentions that the agreement for the sale of land under review in the lower court was invalid because the registered owner is deceased. The applicants state that they lacked capacity at the time of sale and that no succession had been instituted or concluded. The subordinate court, therefore, erred in nding that the respondent was the rightful owner of the 4.0 acres and in ordering that the land be transferred to her. 12. There is also an argument that the suit was time-barred, as it was brought 33 years after the parties signed the sale agreement. The applicant contends that the law requires suits founded on a contract to be instituted within six years of the agreement. The applicants assert that this rendered the suit led in the subordinate court fatally defective and that it should have been dismissed for that sole reason. The issue was raised in the applicants ‘defense but was not considered by the trial court in the judgment. 13. Based on the issues of law raised in the Memorandum of Appeal and without delving into the merits of the case, I think that those issues are arguable on appeal. 14. Consequently, the application dated July 15, 2025, is hereby allowed, and the appeal is to be led and served within 21 days of this ruling. 15. Costs in the intended appeal. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON DECEMBER 10, 2025. E. K. MAKORI JUDGE In the presence of: Ms. Mwangi Applicants Ms. Kagori for the Respondent Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18623/eng@2025-12-10 3

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