Ombuna v Oyaro

the Civil Procedure Act. Though the applicant seeks a variety of orders, the principal prayer is for leave to appeal out of time. 4. The application is premised on the grounds on the face of it and in the supporting adavit deposed by the applicant. The applicant avers that he was the plainti in CMCELC No. 18 of 2019, whereby he led an application seeking restraining orders against the respondent, who was allegedly trespassing on his property known as Plot No. C294 (formerly 2460/RES) Noonkopir. He accuses the trial court of making a ruling unsupported by facts and that was not based on the grievances he had presented, after which it proceeded to dismiss his case on the basis that he had not initiated the process of citation to allow the respondent a chance to defend the suit. 5. The applicant states that his application has been brought without undue delay. He, too accuses his previous advocate of failure to accord him proper legal representation and delaying the ling an appeal against the impugned rulings of the trial court. 6. The applicant reiterated the averments on the face of the motion in his supporting adavit, accusing his previous advocate of failing to le an appeal against the rulings dated 28th May 2020 and 27th July 2022. He states that the trial court denied him his right to property without according him the right to be heard. He insists that he remains the registered proprietor of the suit property. 7. It is the applicant’s position that his case was dismissed unfairly, and though the court advised him to le a fresh suit, he does not have the requisite court ling fees of Kshs. 71,000/-. His plea is that if he is denied leave as sought, he stands to suer irreparable loss. He opines that no prejudice will be suered by the respondent if leave is granted to him to appeal out of time. 8. In response to the application, the respondent led a replying adavit sworn on 30th July 2025. He terms the application as an afterthought and an abuse of the process of the court, considering the duration of time taken after the rulings sought to be appealed from were delivered. The delay of two and four years respectively, according to the respondent is inordinate in the circumstances of this case. 9. The respondent asserts that the applicant is not deserving of the exercise of this court’s discretion in his favour. He further elaborates that the suit property belonged to his late father and was registered in his name. He explains that he was wrongly sued by the applicant since he was not the administrator of the estate of his late father. He arms that he duly pointed this out before the trial court and the court therefore arrived at the correct decision. 10. I note that none of the parties led written submissions in this matter as directed by the court. Issues for determination. 11. As I pointed out earlier, the main prayer for consideration is that of leave to le an appeal out of time against the rulings delivered by the trial court on 28th May 2020 and 27th July 2022. The other prayers are dependent on the fate of the main prayer. The critical issue then for this court to determine is whether the application meets the legal threshold for the grant of leave or extension of time to appeal out of time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18650/eng@2025-11-27 2

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Determination. 12. Section 79G of the Civil Procedure Act provides that every appeal from a Subordinate Court to this court shall be led within a period of 30 days from the date of the decree or order appealed against, 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 on time. 13. Section 16A of the ELC Act reiterates the position on timelines as well as reserving the court’s discretion to admit an appeal out of time. 14. In the case of Salat v Independent Electoral and Boundaries Commission & 7 others, the Supreme Court laid down the considerations for the court’s discretion to extend time in the following terms; i. 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, ii. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court, iii. Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis. iv. Whether there will be any prejudice suered by the respondent if the extension is granted. v. Whether the application has been brought without undue delay; and vi. Whether in certain cases like election petitions, public interest should be a consideration for extending time. 15. It is therefore well settled that the court has unfettered discretion on whether or not to extend time for ling an appeal out of time, taking into consideration the length of the delay, the reason(s) for the delay, and the degree of prejudice to the respondent amongst the other considerations outlined in the Salat case (supra). 16. The two decisions sought to be appealed against in this case were delivered on 28th May 2020 and 27th July 2022 respectively. This application was led in October 2024, well over four (4) years after the delivery of the 1st decision and over two (2) years after the 2nd decision. By all standards, the delay is inordinate. It is therefore incumbent upon the applicant to lay a proper basis for the extension of time by explaining the delay to the satisfaction of the court. 17. On the one hand, the applicant insists that the application has been brought without undue delay, while on the other hand, he attempts to blame his previous advocates for failure to le an appeal on his behalf without stating if, and when, he had instructed the advocate to lodge the appeal, if at all. 18. In the case of Mohamed v Diamond Trust Bank Kenya Limited & another (2025) KESC 17 (KLR), the Supreme Court of Kenya was categorical that it is not enough for a party to simply blame the advocates on record for all manner of transgression. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18650/eng@2025-11-27 3

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Parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. 19. The applicant herein has not demonstrated that he made concerted eorts or exercised due diligence, through evidence or correspondence of the follow-up with the advocate to pursue his rights. He seem to have woken up from a dep slumber and realized that he needed to lodge an appeal against the decisions made on 28th May 2020 and 27th July 2022. 20. For the foregoing reasons, this court is not persuaded that the applicant is deserving of its discretion to extend time. He has not laid the basis for the exercise of such discretion in his favour to the satisfaction of the court. He has not satisfactorily explained the otherwise inordinate delay. I nd no merits in his application. 21. Consequently, the application dated 2nd October 2024 is dismissed with costs to the respondent. The earlier application dated 21st August 2024 that was apparently abandoned by the applicant is dismissed for want of prosecution with no orders as to costs. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 27TH DAY OF NOVEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: N/A by the Parties Court Assistant: Kendi M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18650/eng@2025-11-27 4

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