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3. That the Applicant then led an application seeking leave to le an appeal and conscious that the statutory period of ling the appeal would lapse after 30 days. All in all the application for leave to le an appeal against a Ruling was granted on the 5th September 2023 out of the statutory period of 30 days. 4. The Applicant avers that the delay is excusable and not in ordinate and was caused by factors beyond his control since the Ruling was only delivered on 5/09/2023. 5. The application is opposed by the 2nd Defendant who led through their Counsel Vusha Onsembe & Mambiri Company Advocates a Replying Adavit and Grounds of Opposition sworn and dated 11/04/2024 respectively. They have contended that there is a nal decision issued by a competent Court involving the same parties in Limuru Magistrate Court ELC No. 52 of 2022. This being the case then the Applicant’s application is incompetent as it oends the provisions of Section 6 and 7 of the Civil Procedure Act Cap 21. 6. He further avers that the orders being sought are same orders that were granted on 5/09/2023 in respect of the Notice of Motion Application dated 10/06/2023 under prayer 4 of the application. A copy of the application is annexed and marked as FNM-1 and the Ruling is annexed and marked as FNM-2. 7. It is his contention that the instant application is mischievous and aimed at frustrating the 2nd Respondent from peaceful possession and occupation of the suit property. 8. That the application is an abuse of the Court process and is frivolous, scandalous and an abuse of the process of the Court and should be dismissed with costs to the Interested Party. 9. The Applicant/Plainti in a Supplementary Adavit sworn on 5/05/2024 avers that the 2nd Respondent had misunderstood her application since the application before the Subordinate Court sought leave to appeal against the Ruling as there is no automatic right of appeal on a Ruling. 10. The Applicant further contends that whereas the application dated 10/06/2023 and particularly prayer 4 was predicated upon Order 43 (1) of the Civil Procedure Rules which exclusively provides orders that an appeal shall lie as a right, the current application is predicated on Section 79 G of the Civil Procedure Act which provides for the time within which appeals from the subordinate Court to the High Court shall be led which is 30 days. 11. She further avers that the subordinate Court granted her the leave to le an appeal against the Ruling but that the 30 days were already spent for ling a memorandum of appeal thus the current application. That infact the 2nd Respondent at paragraph 6 of their response misconceived the instant application before the subordinate Court to be one seeking leave to le an appeal out of time. It is her contention that the subordinate Court cannot issue the orders of ling an appeal out of time only the superior Court can. 12. The parties agreed to canvass their application by way of written submissions and the Court gave directions for the disposal on 12/03/2025. The Applicant informed the Court that they had led their submissions already dated 20/05/2024. The Respondents did not attend Court on 12/03/2025 despite having been served and an adavit of service dated 23/01/2025 being led in Court. Being satised that the Respondents were served the Court reserved a Ruling for the application. Determination 13. I have carefully perused the application and the issue for determination is whether to allow an appeal to be led out of time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18661/eng@2025-07-15 2

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14. In Joseph Kakomo Mbenga v Maingi Charles & another [2018] eKLR, the Court made reference to the case of First American Bank of Kenya Ltd v Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 where the Court set out the principles/factors to be considered in exercising its discretion when deciding whether or not to enlarge time as follows:“ (i) The explanation if any for the delay; (ii) The merits of the contemplated action, whether the matter is arguable one deserving a day in Court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii) Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suer as a result of a favourable exercise of discretion in favour of the Applicant.” 15. The Court has unfettered discretion in granting leave to le an Appeal out of time. However, there must be some material before it to enable the Court exercise such discretion. The Applicant seeking enlargement of time to le an appeal must show good cause for doing so. 16. In the case of Aviation Cargo Support Limited v St. Mark Freight Services Limited (2014) eKLR the Court of Appeal in determining an application for leave to le and serve a record of appeal out of time stated as follows: “ The order whether or not to grant extension of time to le and serve the record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merits. For the Court to exercise it discretion in favour of an Applicant the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate, the Applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the Applicant took to ensure that it came to Court as soon as was practicable. In the normal vicissitudes of life deadlines will be missed even by those who are knowledgeable and zealous. The Courts are not blind to these facts. When this happens, the reasons why this occurred should be explained satisfactorily including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to le out of time” 17. What can be gleaned from the above case is that the power to grant an extension of time against a nal decision in a case must be exercised judicially. As per the case of Sayers v Clarke Walker (a firm) 2002 EWCA Civ 645 the Supreme Court of Judicature Court of Appeal, Civil Division observed as follows: “ The Courts should consider all the circumstances of the case including: a. The interest of the administration of justice b. Whether the application for relief has been made promptly c. Whether the failure to comply was intentional d. Whether there is a good explanation for the failure e. The extent to which the party in default has complied with other rules, practice directions and Court orders https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18661/eng@2025-07-15 3

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18. f. Whether the failure to comply was caused by the party or his legal representative g. The eect which the failure to comply had on each party and h. The eect which the granting of relief would have on each party.” The Applicant is seeking leave to appeal out of time having examined Order 43 and realized that they need to seek leave of Court before placing their appeal for consideration in Court. That is the rst hurdle that the Applicant had to jump over. The decision by the Hon. SPM C. N. Mugo was issued on 5/09/2023 granting them the Applicant leave to appeal. This clearly stated where the Court granted only prayer 4 of the application dated 10/06/2023. The prayer read as this: “ This Honorable Court be pleased to grant the Applicant leave to appeal against the Ruling of this Honorable Court delivered on the 30th May 2023.” 19. In the said prayer there is no mention of appeal out of time. It is therefore not correct as the 2nd Respondent has averred that the decision is res judicata. This is because the issue of seeking leave to appeal out of time was not in subject in the application dated 10/06/2023. Further the Applicant has provided plausible explanation as to why they seek an extension of time. 20. As already explained above the principles upon which the Court should exercise the said discretion and grant leave to appeal out of time are now settled. (See Leo Sila Mutiso v. Rose Hellen Wangari Mwangi – Civil Application No. NAI 255 of 1997 and Thuita Mwangi v. Kenya Airways Limited (2003) eKLR. The question therefore is whether taking into account the facts of the instant case; the Applicant has satised the said conditions. 21. An application to seek leave to appeal under Order 43 (1) of the Civil Procedure Rules must be led formally in Court. This means it needs to be properly documented and submitted to the Court Registry for processing, according to the Civil Procedure Rules. This the Applicant did and got her orders on 5/09/2023 which was way beyond the allowable time to lodge an appeal for the Ruling delivered on 30/05/2023. Thus the Applicant has rightly placed this application before this Court. 22. Given the foregoing I nd that the application is merited in so far as the issue of extension of time is concerned to enable the Applicant to le her appeal. In the nal analysis, I direct that the Memorandum of Appeal be led in an appeal le within 21 days from the date of delivery of this Ruling failure to which, the orders granted herein shall lapse. Costs in the cause. Orders Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 15TH DAY OF JULY 2025 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Mr. Mweriri for the Plainti/Applicant 1st, 2nd, 3rd and 4th Defendants – Absent Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18661/eng@2025-07-15 4

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