Bor v Rotich

3. Briey, the Applicant avers that he was the defendant in Eldoret MELC Suit No. 18 of 2024 pursuant to a suit led by the Respondent seeking judgement against him for eviction from land parcel Cheptiret/Kapkoi Block 6 (Kaptumo) 52 and a permanent injunction restraining his agents, servants and any person claiming under him from entering, claiming ownership, developing or dealing with the said parcel of land in any manner. 4. It is deponed that as part of the Applicants defence against the claim by the Respondent, the Applicant led a counter-claim against the Respondent for the following orders: a. A declaration be issued that I am the lawful owner of land parcel Cheptiret/ Kapkoi Block 6 (Kaptumo) 52 measuring approximately 1.838 hectares. b. A declaration that the late Kiprotich Chepkochoi held the said parcel of land in trust for my family. c. A declaration that the title deed held in the name of the Respondent was fraudulently obtained and ought to be cancelled. d. An order for cancellation of the title deed held by the Defendant for land parcel number Cheptiret/ Kapkoi Block 6 (kaptumo) 52. e. In the alternative, a declaration that the land parcel number Cheptiret/ Kapkoi Block 6 (Kaptumo) 52 is registered in the name of the Respondent on my behalf. f. An order directing the Defendant to execute all documents and take all necessary steps to eect transfer of land parcel Cheptiret/ Kapkoi Block 6 (Kaptumo) 52 in his favour and in default, the Honourable Court executes the transfer forms in his favour. g. Costs of the suit. 5. The Applicant contends that on the 17th December, 2025, judgment was delivered in favour of the Respondent to the eect that he was declared the registered lawful proprietor of land parcel Cheptiret/ Kapkoi Block 6 (Kaptumo) 52 and the Applicant was ordered to vacate the suit land. A permanent restraining order was further issued against him regarding the suit land. 6. The Applicant further contends that his counter- claim in the suit was dismissed on the basis that the Respondent had established his case on a balance of probabilities. 7. The Applicant avers that the said judgment was delivered on 17th December 2025 but his Advocate on record inadvertently failed to inform him about the judgment as they had closed their oces for the December break/holiday on 16th December 2025 and resumed work on 12th January 2026. 8. The Applicant further averred that he was made aware of the judgment in or about March 2026 upon visiting his advocate’s oce. 9. The Applicant avers that pursuant to the perusal of the said judgement is when he intended to le an appeal against the whole judgment. 10. The Applicant contends that in line with his memorandum of appeal, the said appeal raises triable issues for determination by this Honourable Court with high chances of success. 11. It is further his claim, that he has been informed by his advocate on record that the 30 days statutory time to le the Memorandum of Appeal has since lapsed and therefore prays that this Honorable Court do grant him an extension of time to le his appeal out of time by validating the memorandum of appeal as duly led. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5465/eng@2026-09-17 2

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12. It is deponed that the delay in ling his Appeal within time was occasioned by the inadvertent delay by his advocates on record to inform him about the said judgment delivered on 17th December 2025 and to get further instructions regarding the appeal. 13. The Applicant did implore the Honourable Court that it is in the interest of justice that the inadvertent delay by his advocate should not be visited upon him. 14. The Applicant further averred that the draft Memorandum of Appeal raises cogent and critical issues that ought to be examined by the Honourable Court on merit. 15. In addition, the Applicant’s Advocate did le a Supporting Adavit sworn on even date by one Celia Nasongo, an advocate of the High Court of Kenya, practicing in the rm of M/s Z. K. Yego Law Oces and having conduct of the matter herein on behalf of the Applicant. 16. It is deponed that on 17th December 2025, judgment was delivered in favour of the respondent to the eect that he was declared the registered lawful proprietor of land parcel Cheptiret/ Kapkoi Block 6 (Kaptumo) 52 and the Applicant was ordered to vacate the suit land. In addition, a permanent restraining order was further issued against the Applicant regarding the suit land. 17. The advocate claims that she was present in court when the said judgment was delivered. However, that they inadvertently failed to inform the Applicant about the delivery of the judgment as they had closed their oces for the December break/holiday on 16th December 2025 and resumed work on 12th January 2026. 18. It is further her claim that she received further instructions to appeal from the Applicant in or about March 2026 when the said Applicant visited their oces and she informed him of the judgment. 19. The advocate therefore implored the Honourable Court that it is the interest of justice that the inadvertent delay should not be visited upon the Applicant. 20. She further pleaded that the draft Memorandum of Appeal raises cogent and critical issues that ought to be examined by the Honourable Court on merit and the said appeal has an arguable appeal with overwhelming chances of success. 21. On 12.05.2026, this court issued directions on disposal of the present application by way of submissions. 22. On the set mention date, 06. 07. 2026, to conrm compliance the Respondent’s advocate did conrm to the Honourable Court that they would not be ling submissions while counsel for the Applicant herein conrmed to have led their submissions dated 02. 07. 2026, which I have read and duly considered. 23. I will therefore proceed to render my decision as hereunder. Analysis and Determination: 24. I have carefully considered the Application and the grounds issues for determination: as the submissions led in totality, and I identify the following therein, the Supporting Adavits as well i. Whether the Applicant is entitled to the orders sought ii. Who bears the costs of this Application? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5465/eng@2026-09-17 3

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25. The above issues for determination having been duly identied, I will now proceed to discuss the same as hereunder. i. Whether the Applicant is entitled to the orders sought; 26. The rst issue herein seeks to determine and ascertain whether the orders sought in the present application are tenable in the circumstances. 27. Section 79 G of the Civil Procedure Act provides 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 to the appellant 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”. 28. The Applicant herein led the application seeking leave to le an appeal out of time against a judgment delivered on 17th December 2025 by Hon. D.S Sifuma (SRM) in ELDORET MELC NO. 18 OF 2024 Charles Kiprono Rotich Vs Josephat Bor. 29. In the said Application, the Applicant averred that in the above-mentioned case, judgment was delivered on the 17th December, 2025, but his advocates did not inform him of the outcome of the said judgment as the said rm representing him had closed their oces for the December break/ holiday on 16th December and resumed duty on the 12th January 2026. 30. In addition, the Applicant stated that he was made aware of the said judgment in or about March 2026 upon him visiting the said rm and proceeded to give instructions to his advocate on record to appeal against the said judgment. 31. The said Application was also supported by an adavit sworn by Ms. Nasongo, the Advocate of the Applicant in which she reiterated the Applicant’s averments and in particular that she was present when the said judgment was delivered but the rm inadvertently failed to inform the Applicant of the said judgment as the rm had closed their oce for the December break/holiday on 16th December 2025 and resumed on 12th January 2026. 32. In addition, Ms. Nasongo further stated that the Applicant was made aware of the said judgment in or about March 2026 when he visited the rm and gave further instructions to the said advocate to appeal against the said judgment. 33. Therefore, the bone of contention before the Honourable Court is whether the Court should allow the said application which seeks to extend time for ling a Memorandum of Appeal keeping in mind the statutory timeline had lapsed. 34. The Supreme Court set the guiding principles for the grant of extension of time in the Case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others (2014) eKLR as follows:- “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; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; whether the Court should exercise the discretion to extend time, is a consideration to be made on a case-to- case basis; whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5465/eng@2026-09-17 4

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whether there will be any prejudice suered by the respondents if the extension is granted; whether the application has been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 35. In applying the principles on extension of time set out in the Nicholas Salat Case to the instant application, I note that the reason for delay in complying with the Court’s Rules as averred by the applicant is that he was not informed of the outcome of the said judgment as the advocates rm had closed their oce for the December break/ holiday on the 16th December, 2025 and resumed on 12th January, 2026 yet on the 17th December, 2025 when the judgment was being delivered, the said advocate averred that she was present in court. 36. First, I nd that the explanation given by the applicant’s advocate is contradictory. On the one hand Ms. Nasongo states that their oces had been closed on 16th December, 2025 for the December holiday, yet on the other hand she states that she was present in court on 17th December, 2025 when the impugned judgment was delivered. 37. However, it is trite law that where justice of the case mandates, mistakes of advocates even if they are blunders, should not be visited on the clients when the situation can be remedied by costs. In the case of Lucy Bosire vs Kehancha Div. Land Dispute Tribunal & 2 Others [2013] eKLR the court held as follows: “ It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suer the penalty of not having his case determined on its merits.” 38. However, it is not in every case that a mistake committed by an advocate would be a ground for allowing an appeal to be led out of time. 39. In Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi (Milimani) HCCS No. 397 of 2002, Kimaru J (as he then was) held: “ Whereas it would constitute a valid excuse for the defendant to claim that she had been let down by her former advocates failure to attend court on the date the application was xed for hearing, it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case. In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the dismissal.” 40. Similarly, in the case of Eldoret Grains Limited vs Gilbert Kiptoo Kipkoech & 14 Others (Civil Application 108 of 2019) [2021] KECA 273 (3 December 2021) (Ruling) the Court of Appeal cited with approval the case of Rajesh Rughani vs Fifty Investment Ltd & Another (2005) eKLR and held: “ It is not enough simply to accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not excusable mistake which the court may consider with some sympathy.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5465/eng@2026-09-17 5

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41. Lastly before I come to my conclusion, in Bains Construction Co. Ltd vs John Mzare Ogowe (2011) eKLR, the Court of Appeal observed:“ It is to some extent true to say mistakes of counsel as in the present case should not be visited upon a party but it is equally true when counsel as agent is vested with authority to perform some duties and does not perform it, surely such principal should bear the consequences.” 42. It is important to note that in this case, the Applicant herein only visited the Advocates rm around March 2026, a couple of months after the law rm had resumed after the said break. 43. In the present case, the explanation advanced by the Applicant does not, in my view, satisfactorily account for the delay in ling the appeal within the statutory period. There is no dispute that the judgment was delivered on 17th December 2025 and that the Applicant’s advocate was present in Court when the same was delivered. The Applicant’s advocates closed their oces for the December holiday on the 16th December 20265 a day before the judgment was delivered and resumed operations on 12th January 2026. Even assuming, for purposes of argument, that the Applicant was not immediately informed of the judgment upon its delivery, the explanation oered does not account for the period between 12th January 2026 and March 2026 when the Applicant allegedly visited his advocates’ oces and became aware of the judgment. 44. More importantly, no explanation has been placed before this Court as to why the Applicant himself did not make any inquiry regarding the progress or outcome of his case during this period. 45. The Applicant was a party to the proceedings and had a personal interest in the outcome thereof, particularly considering that the Respondent’s suit sought, inter alia, his eviction from the suit property and that he had himself mounted a counterclaim seeking declarations of ownership, cancellation of the Respondent’s title and transfer of the suit property in his favour. In the circumstances, it would be expected that a diligent litigant would maintain reasonable contact with his advocates and make inquiries concerning the progress of a matter of such signicance. 46. I am cognizant of the fact that a litigant should, in appropriate circumstances, be aorded an opportunity to ventilate his case on merit and that an advocate’s mistake should not, in every instance, be visited upon an innocent litigant. However, that principle cannot be invoked as a blanket excuse for indolence or unexplained delay. The discretion under Section 79G of the Civil Procedure Act is a judicial discretion which must be exercised upon a proper and satisfactory explanation of the delay. The burden rests squarely upon the Applicant to demonstrate good and sucient cause for the failure to comply with the statutory period. 47. In the present circumstances, I nd that the Applicant has not discharged that burden. The only reason given is that the advocates’ oces were closed for the December holiday between 17th December, 2025 and 12th January 2026. The Applicant does not explain the subsequent period up to March 2026. 48. This court notes that the judgment sought to be appealed against was delivered on 17th December 2025, while the present Application was led on 30th March 2026. The delay was therefore not merely technical or minimal. The Applicant was required to demonstrate, with reasonable particularity, why the statutory period was not complied with and why the Court should exercise its discretion in his favour. A general attribution of the delay to inadvertence on the part of counsel, without satisfactorily accounting for the entire period of default, is insucient. Moreover, the applicant’s counsel contradicted herself by alleging that they had closed their oces on 16.12.2025 while at the same time conrmed that she was present in court on 17.12.2025 when the Judgment was delivered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5465/eng@2026-09-17 6

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49. I am equally not persuaded that the mere assertion that the intended appeal raises arguable or cogent grounds, without more, is sucient to warrant an extension of time. The existence of an arguable appeal is a relevant consideration, but it does not, on its own, cure an unexplained or inordinate delay. The Court must rst be satised that the Applicant has laid a proper basis for the exercise of its discretion to enlarge time. 50. It is therefore my nding that although the Applicant’s predicament may have arisen, in part, from an omission on the part of his advocates, the circumstances of this case do not disclose a satisfactory explanation for the entire period of delay. The Applicant has not demonstrated the diligence expected of a litigant who seeks the equitable indulgence of the Court. To grant the orders sought in the circumstances would, in eect, permit the statutory timelines to be disregarded without sucient cause being demonstrated. 51. Consequently, having considered the totality of the circumstances of this case, the provisions of Section 79G of the Civil Procedure Act, the principles enunciated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (Supra) and the authorities cited herein, I nd that the Applicant has failed to satisfy this Court that he had good and sucient cause for failing to le the intended appeal within the prescribed period. The discretion of this Court to extend time is therefore not merited in the circumstances. Costs: 52. On the issue of costs, the general rule is that costs shall follow the event unless the court directs otherwise. Given the circumstances of the case, I will condemn the Applicant to pay costs of the application to the Respondent. Disposition: 53. 54. In view of the foregoing, I accordingly make the following orders:1. The application dated 30.03.2026 is hereby dismissed. 2. The prayer for extension of time within which to le the Memorandum of Appeal against the judgment delivered on 17th December 2025 in Eldoret MELC No. E018 of 2024, Charles Kiprono Rotich v Josephat Bor, is hereby declined. 3. The prayer seeking validation and/or deeming of the annexed Memorandum of Appeal as duly led is consequently declined. 4. The Applicant shall bear the costs of the Application. It is so ordered. DATED, SIGNED AND DELIVERED IN ELDORET THIS 17TH DAY OF SEPTEMBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the presence of: Ms. Nasango holding brief for Mr. Yego for Applicant. Mr. Misoi for Respondent. Court Assistant – Laban https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5465/eng@2026-09-17 7

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