Waweru & another v Waweru (Environment and Land Miscellaneous Case E080 of 2025) [2026] KEELC 3198 (KLR)

3. That the honourable court be pleased to grant leave to the applicant to file an appeal out of time as per the annexed memorandum of appeal. 4. That the firm of PETER RUIGU & COMPANY ADVOCATES be allowed to come on record in place of WANGUI KURIA & COMPANY ADVOCATES on behalf of the Appellant/ Applicant. 5. 2. That the costs of the applicant be provided for. The application is premised on the face of it and the supporting affidavit of Solomon Mungai Waweru sworn on even date. 3. The Applicant, who is admittedly out of time, seeks refuge in the equitable jurisdiction of the Court, contending that the delay was neither deliberate nor contumelious, but was instead occasioned by the inadvertence, omission, or inaction of former counsel. 4. The gravamen of the application is that the failure to institute the appeal within time ought not to be visited upon the Applicant, who asserts that he was at all material times desirous of pursuing his appellate rights, but was let down by those entrusted with the conduct of his case. 5. The Applicant urges the Court to intervene so as to prevent an injustice that would otherwise arise from the rigid application of procedural timelines. 6. The Respondent vide the replying affidavit of Linus Waweru Kangethe sworn on 24th September 2025, resists the application with equal THIKA ELC MISC E080 OF 2025 (RULING) Page 2

page 2 of 9

vigour, invoking the well-settled principle that litigation must, at some point, come to an end. 7. The Respondent contends that the present application is not a bona fide invocation of the Court’s discretion, but a calculated stratagem designed to reopen a matter that has already been conclusively determined. 8. The Respondent characterises the application as malicious, vexatious, and an abuse of the process of the Court. 9. More pointedly, the Respondent asserts that the indulgence sought would operate to unjustly deprive him of the legitimate benefit of a judgment lawfully obtained, thereby undermining the principle of finality in litigation. 10. The Respondent urges the Court to guard against the erosion of the principle of finality of litigation by declining to extend time in circumstances where, it is argued, no sufficient or credible explanation has been proffered for the delay. 11. The application was canvassed by written submissions duly filed by the parties which I have considered. Issues for Determination 12. Having examined the application, the Replying Affidavit in opposition, the rival submissions and the relevant authorities, the key issue that THIKA ELC MISC E080 OF 2025 (RULING) Page 3

page 3 of 9

emerges for determination is: Whether the Applicant has established sufficient cause to warrant leave to appeal out of time. Analysis and Determination 13. The jurisdiction to extend time for the filing of an appeal is anchored in statute and the rules of procedure, which prescribe the timelines within which an aggrieved party must approach the appellate forum, while at the same time reserving to the Court a residual discretion to admit an appeal out of time where sufficient cause is shown. That discretion, though wide, is not unfettered. It must be exercised judicially, upon defined principles, and not on whim or sympathy. 14. The statutory foundation is to be found in Section 79G of the Civil Procedure Act, which stipulates: “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 sufficient cause for not filing the appeal in time.”[Emphasis added]. 15. The provision strikes a careful balance between two competing imperatives: the need for finality in litigation, and the need to ensure THIKA ELC MISC E080 OF 2025 (RULING) Page 4

page 4 of 9

that a deserving litigant is not shut out from the seat of justice by reason of excusable default. 16. The governing principles were authoritatively articulated by the Supreme Court Independent in Nicholas Electoral and Kiptoo Arap Boundaries Korir Salat Commission & v 7 Others [2014] eKLR, where the Court stated as follows: “Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to 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 where they seek courts to grant it.” 17. From the foregoing, several principles emerge. First, an applicant for extension of time bears the burden of demonstrating that the delay is excusable and that it did not arise from indolence or deliberate inaction. Second, the Court’s discretion is not invoked as of right; it is earned through a satisfactory explanation for the entire period of delay. Third, the equitable nature of the remedy demands candour and accountability on the part of the applicant, including a full disclosure of the circumstances said to have occasioned the default. 18. The Applicant avers that upon delivery of judgment in RUIRU MCELC No. E127 of 2021 on 2nd June2022, he promptly sought advice from his former counsel on the appropriate course of action, but that such advice was not forthcoming. THIKA ELC MISC E080 OF 2025 (RULING) Page 5

page 5 of 9

19. The Applicant contends that he has now instructed new counsel and is eager to ensure diligence in prosecuting the case. 20. The Applicant further invokes Article 159(2)(d) of the Constitution, contending that the Court ought to eschew undue regard to procedural technicalities in favour of substantive justice. 21. The Applicant submits that the delay complained of is not attributable to indolence or bad faith on his part, but to the lapse of former counsel, and that to decline the application on that basis would occasion prejudice by shutting him out from the appellate process on account of circumstances beyond his control. 22. The law is now settled that mistake or inadvertence of counsel is not, in itself, a talismanic incantation sufficient to automatically entitle a litigant to the Court’s discretion. 23. While the Court does not lightly shut its doors where a party has been let down by his advocate, it equally does not act on the premise that all defaults attributable to counsel must, without more, be visited with indulgence. The inquiry remains whether the explanation tendered is candid, plausible, and sufficient to account for the entirety of the delay. 24. In Habo Agencies Ltd v Wilfred Odhiambo Musingo [2015] eKLR the Court of Appeal underscored that procedural rules remain binding and cannot be displaced by a broad invocation of Article 159 of the Constitution. While the Constitution commands courts to do substantive justice, that principle does not operate to oust clear THIKA ELC MISC E080 OF 2025 (RULING) Page 6

page 6 of 9

procedural requirements or to sanction non-compliance under the guise of technicality avoidance. 25. The Court further drew guidance from the Supreme Court decision in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 Others [2014] eKLR, which affirmed the dicta of Kiage, JA in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others [2013] eKLR, where it was stated: “… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines…” 26. The foregoing underscores a consistent judicial caution. Article 159(2)(d) of the Constitution is not a carte blanche for the disregard of procedural timelines, nor a mechanism for reviving indolent or unexplained delay. Rather, it operates within defined limits, preserving the integrity of procedural rules which are themselves designed to ensure certainty, fairness, and the orderly administration of justice. THIKA ELC MISC E080 OF 2025 (RULING) Page 7

page 7 of 9

27. In the instant case, the Applicant attributes the delay to the alleged failure of former counsel to provide advice following delivery of judgment. 28. While counsel’s lapse may, in appropriate cases, constitute a relevant consideration, the explanation must still account for the entire period of delay and demonstrate reasonable diligence on the part of the Applicant. 29. On the material presented, it remains unclear what steps the Applicant took, if any, to follow up on the matter or to secure alternative legal guidance within time. The sufficiency of the Applicant’s explanation falls for close scrutiny against the threshold already set out. 30. The Respondent submits that the reasons advanced by the Applicant are insufficient to justify the exercise of the Court’s discretion to extend time for filing the appeal. 31. Moreover, the Respondent in their replying affidavit sworn on 24 th September 2025 placed before the Court evidence indicating that the Applicant previously filed an application for review on 8th March 2023 in respect of the impugned judgment prior to instituting the present application, a fact which the Applicant has not disclosed. 32. An applicant who seeks equitable relief is under a duty of full and frank disclosure. This being a court of conscience and equity, will not lend its aid to a party who approaches it with unclean hands or material non-disclosure. THIKA ELC MISC E080 OF 2025 (RULING) Page 8

page 8 of 9

33. Having considered the material placed before it, the applicable legal principles, and the competing explanations offered, I am not persuaded that the Applicant has met the threshold for the grant of the orders sought. 34. The explanation tendered does not satisfactorily account for the entire period of delay, and the attendant circumstances, including the issue of non-disclosure, militate against the favourable exercise of discretion. 35. In the premises, the application dated 29th August 2025 is devoid of merit and is accordingly dismissed with costs. Dated, signed and delivered virtually, at Thika this 30th day of April 2026 …………………….. J. M. ONYANGO JUDGE THIKA ELC MISC E080 OF 2025 (RULING) Page 9

page 9 of 9