Agricultural Finance Corporation & another v Mwangi (Miscellaneous Application E032 of 2025) [2026] KEELC 1944 (KLR)

4. The reason given by the Applicant for the delay is that it took some time for them to obtain a copy of the ruling, which enabled them to comprehend it. And that after they got the physical ruling, they decided to appeal. 5. It is the Applicant’s prayer that it is only fair and just that this application be allowed, as the ruling prejudices them. The Respondent’s replying afidavit. 6. The Respondent swore an afidavit on 1st August 2025 in response to the application. He deposed that the application has no merit, is an abuse of the court process, is filed belatedly and does not warrant the prayers sought. 7. The Respondent refutes the claim that there was no restraining order against the sale and auction, noting that there was a restraining order issued on 25th July 2024, but it was overtaken by events once the public auction took place. 8. Noting that the ruling herein was delivered on 9th May 2025, he deposed that it has taken the applicant 60 days before presenting this application for extension of time to file an appeal, even though they had expressed their intention to file an appeal after the ruling was read. 9. Further contending the Applicant’s sentiment that it took time to obtain the ruling, the Respondent invited the Court to take judicial notice that rulings and judgments are now uploaded onto the Judiciary Case Tracking system almost in real time, stating that the Applicant is peddling falsehoods. Applicant’s written submissions. 10. Counsel for the Applicant submitted that the Court has unfettered discretion to grant an extension of time to file an appeal, which should be exercised judiciously. 11. The Applicant submits that their appeal is arguable, stating that it raises fundamental questions on the correct interpretation of the Court order. They relied on the authority of County Secretary of Kajiado & 47 others v Salaries & Remuneration Commission & another [2021] eKLR, where it was held that an applicant only needs to demonstrate one arguable ground and not a multiplicity of them, and further that an arguable appeal is not necessarily one that will succeed. 12. Regarding the grounds on which the Applicant seeks extension of time to file the appeal, they submit that the delay in filing the Appeal was occasioned by the inability to obtain the oficial copy of the Ruling of the lower court before the lapse of time. They relied on the holding in the following cases: Ferdinand Ndungu Waititu Babayao v Republic (2020) eKLR, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others (2013) eKLR. 13. The Applicant argues that in this case, they filed this Application promptly, as the Application is dated 10th July 2025, just a month after the lapse of the 30 days from the 9th May 2025 when the court delivered the ruling. They further argue the delay is not inordinate and is explainable since the delay is attributable to the time it took the Applicant to get the oficial copy of the ruling and prayed that their application be allowed. The Respondent’s written submissions 14. Counsel for the Respondent quoted Section 79G of the Civil Procedure Act and the cases of Seventh Day Adventist Church East Africa Ltd & 2 others vs Mososa Construction Company Ltd(2012)KECA 43 KLR, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1944/eng@2026-02-26 2

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Commission & 6 others (2013) eKLR, Dilpack Kenya Limited vs William Mithuma Kitonyi 2078 eKLR, submitting that the instant Application does not meet the threshold for the Court’s exercise of discretion in favour of the Applicant. 15. Counsel highlighted that from the ruling annexed to the application, the Applicant’s Counsel was present for the reading of the ruling, which means they were aware of the delivery of the same and that the same was uploaded to the Judiciary Case Tracking System almost in real time. 16. Further, the Respondent argues that the Applicant has not placed any material before the Court to at least show that the intended appeal has any chance of success, as they have not annexed a Draft Memorandum of Appeal. The Respondent thus urged the Court to dismiss the application. Analysis and Determination 17. The present application seeks leave to file an appeal out of time from the ruling and orders dated 9th May 2023 issued in Mukurwe-ini MCELC E006 of 2024. The application is based on, among other provisions, Sections 79G and 95 of the Civil Procedure Act, CAP 21. Section 79G thereof provides that: “ Every appeal from a subordinate court to the High Court shall be filed 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 satisfies the court that he had a good and suficient cause for not filing the appeal in time.” 18. Section 95 of the Civil Procedure Act stipulates that: “ Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.” 19. From the foregoing, it is clear that this court has the discretionary power to extend the time for filing an appeal. The Court in the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) held as follows with regard to this discretion: “ As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others, Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65, the Court set out the factors to be considered in deciding whether or not to grant such an application, and these are (i) the explanation, if any, for the delay; (ii) the merits of the contemplated action, whether the matter is an 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 sufier as a result of a favourable exercise of discretion in favour of the applicant.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1944/eng@2026-02-26 3

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20. The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others, Sup Ct. Application 16 of 2014, cited and relied upon by both parties, established the principles to be applied in exercising the discretionary power to extend time: “ Extension of time being a creature of equity, one can only enjoy it if [one] acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that [one] was not at fault so as to let time lapse. Extension of time is not a right of a litigant against a Court, but a discretionary power of the Courts which litigants have to lay a basis for where they seek [a grant of it.……. The Court further decided that: "This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a Court should consider in the exercise of such discretion: 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 who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. 3. whether the Court should exercise the discretion to extend time is a consideration to be made on a case-to-case basis; 4. where there is a good reason for the delay, the delay should be explained to the satisfaction of the Court; 5. whether there will be any prejudice sufiered by the respondents if the extension is granted; 6. whether the application has been brought without undue delay; and 7. whether, in certain cases, like election petitions, the public interest should be a consideration for extending time." 21. In the present case, the thirty days granted under Section 79 C of the Civil Procedure Act lapsed on 9th June 2024. The period of delay between that date and the date of filing the present application was thirty-six days. The reason given for the delay is stated to be that the Applicant did not get a copy of the ruling in good time, to enable them comprehend the contents of the said ruling. 22. Applying the test in the Supreme Court case of Nicholas Kiptoo Arap Korir Salat v. IEBC and 7 Others, Sup Ct. (Supra), the Court is of the view that the reason given for delaying for two months in filing an appeal is not plausible and does not constitute a good reason for the delay, to the satisfaction of the Court. 23. The Applicant attached to its supporting afidavit a copy of the impugned ruling marked as “JK 2”. The said ruling is very clear in the orders that were granted. The trial court noted that the Application dated 18th July 2024 for a temporary injunction had been overtaken by events once the public auction took place, despite the injunctive orders being in place. However, the Court gave an order restraining the transfer and registration of the suit land to the name of the Purchaser and set aside the sale by Public Auction by the Defendant/Applicant herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1944/eng@2026-02-26 4

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24. From the record, the ruling was delivered in the presence of Mr Mutuma, who was holding brief for Mr Mabonga for the Respondents, who are the Applicants in the present case. Further, it is evident from the ruling attached that it was extracted from the Judiciary Case Tracking System, where rulings and judgments are uploaded within 24 hours of being delivered. The Applicant does not claim that the ruling was not uploaded onto the system later than it ought to have been uploaded, thus causing a delay. 25. The excuse the Applicant has given that it took time to obtain the ruling is not plausible, as it was readily available for their perusal. While the delay of sixty-six days may not be considered strictly "inordinate," the lack of a plausible explanation for it is heavily weighed against the applicant. In the Court's view, a plausible explanation for the delay is essential. 26. It is the Court's opinion, therefore, that the reason given for delaying for more than two months in filing an appeal does not warrant the exercise of this Court's discretion to extend the time thereof. 27. Further, the Applicant did not attach a copy of the draft Memorandum of Appeal or set out in the supporting afidavit the grounds they intend to rely on in the intended appeal to enable the Court determine the arguability of the appeal. The Court of Appeal in the case of County Secretary of Kajiado & 47 others v Salaries & Remuneration Commission & another [2021] KECA 817 (KLR) cited by the Applicant found that: “ Being cognisant of the fact that the applicants need only demonstrate one arguable ground and not a multiplicity of them, and further that an arguable appeal is not necessarily one that will succeed, we have no hesitancy in finding that the applicants have an arguable appeal. The first limb has therefore been demonstrated.” 28. The Court of Appeal in the case of Donald O. Raballa v Judicial Service Commission & Attorney General [2018] KECA 641 (KLR) “We conclude this ruling the same way the full Court did in the Ramesh Shah case (supra), thus: “ The authorities cited before us are consistent that the delay in taking the necessary steps to mount an appeal should not be inordinate and that there should be reasons given for any delay. The period and the reasons given therefor were indeed the two factors first considered by the learned single Judge and were found wanting. In efiect, they could not form the basis of the exercise of his discretion in favour of the applicant. On a reference, the full court would have no basis to interfere with such a finding. We think the two factors must take primacy of consideration if the timetable laid in the rules for the conduct of court business will have any meaning. As stated earlier, it would be a rare case where the arguability of the intended appeal would outweigh all other considerations, and it would, at best, in our judgment, be considered in borderline cases". 29. From the foregoing, the Court is not persuaded that the Applicant had a good and suficient cause for not filing the appeal in time. Consequently, the application dated 10th July 2025 is found to have no merit, and it is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT NAIROBI, THIS 26TH DAY OF FEBRUARY 2026. HON. LADY JUSTICE L.G. KIMANI JUDGE In the Presence of:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1944/eng@2026-02-26 5

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Brian: Court Assistant Fozia Muturia for the Applicant Muhoho Gichimu for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1944/eng@2026-02-26 6

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