Faith Njeri Ndungu & 3 others v Lydia Wangechi Mutegi & another

c. Pending the hearing and determination of prayer two (2) above, this Honourable Court be pleased to grant temporary stay of execution pending the hearing and determination of the intended appeal. d. Costs be provided for. The application is premised on the three (3) grounds on its face marked (a) to (c), and is supported by the affidavit of Faith Njeri Ndungu, the 1st applicant, sworn on 1st April, 2025. 2. Prompting the filing of the present application is a judgment delivered on 24th April, 2024 and uploaded on 3rd September, 20024 in Kerugoya CMCC ELC No. 159 of 2019 by Hon. Claire Wanyama. Displeased with the judgment, the applicants wish to file an appeal out of time. The reasons proffered by the applicants for their failure to file the appeal within the statutory thirty (30) days after judgment include: a. The 1st applicant’s father-in-law, aged 95, got a fracture shortly before judgment was delivered, and he would later lose his life as a result; b. The 2nd applicant has been under treatment for chronic myeloid leukaemia since 23 rd March, 2015, and her husband, David Mwangi Difatha, has been experiencing constipation since 2023; KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 2

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c. The 4th applicant has had a heart problem and is now fitted with a pacemaker. 3. Through the supplementary affidavit sworn by Faith Njeri Ndungu, 1st applicant, on 8th May, 2025, she deposed inter alia that though the judgment was delivered on 8 th August 2024, in the presence of their then counsel, it was only uploaded on 3rd September 2024, which was five (5) days before the lapse of thirty (30) days for filing an appeal. She has also given a detailed explanation on David Mwangi Difatha’s illness, drugs used, procedures performed and many other details, which in my view are not necessary for reproduction herein. She further deposed that the said David relied on the 2 nd applicant’s pension for medical and other needs. That the 3rd and 4th applicants are farmers with no stable incomes. That in view of the financial challenges the other applicants faced, the 1st applicant was left alone to finance the expenses related to this case from her pension. That her father-in-law suffered a left hip fracture around 12 th November 2024, resulting to a total hip replacement on 9 th December 2024 thereby draining the funds she intended to use to apply to file an appeal out of time. That they had cleared their previous advocates’ fees as confirmed by the letter dated 27th February 2025, forwarding their file. That there was delay caused by their advocate, who filed the KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 3

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application for leave to file an appeal before the High Court that was then withdrawn on 24th March 2023. That the fact that the titles to the suit properties had reverted to their late mother, Jelipha Muthoni Njagi, is not a bar to their intended appeal, and that their application should therefore be granted. 4. The application is opposed by the respondents, through the replying affidavit of Lydia Wangeci Mutegi, 1 st respondent, sworn on 23rd April, 2025, deposing inter alia that the applicants were represented by the firm of Nyaga Gitari & Co. Advocates in Kerugoya CMCC ELC No. 159 of 2019; that the present application has been filed by a stranger as the new advocates have not sought for leave to come on record, hence offending statutory provisions under Order 9 Rules 5 and 9 of the Civil Procedure Rules; that the judgment was delivered on 8 th August, 2024 in the presence of counsel for both parties, and no appeal was filed within the statutory period; that stay of execution order is overtaken by events as the decree has been executed, and the suit properties reverted to the name of their late mother, Jelipha Muthoni Njagi; that the 3rd applicant has not given any explanation why she could not have filed an appeal in time. 5. The court issued directions on filing and exchanging submissions on 24th April 2025. The learned counsel for KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 4

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the applicants and respondents filed their submissions dated the 9th May 2025 and 28th May 2025 respectively, which the court has considered. 6. In their submissions dated 9th May 2025, the learned counsel for the applicants rehearsed the background of suit, and the averments contained in the applicants’ affidavits as summarised above. Counsel cited Section 79G of the Civil Procedure Act, as the basis upon which an application to file an appeal out of time is founded, and referred to the cases of Diplack Kenya Limited versus William Muthama Kitonyi [2018] eKLR, and Nicholas Kiptoo Korir arap Others ]2014] eKLR, Salat versus IEBC & 7 on the applicable principles in applications for leave to appeal out of time. Counsel further submitted that the situation the applicants find themselves in is defined as that constituting excusable delay as was the case in the case of Njoroge –vs- Kimani [2022] KECA 1188(KLR). 7. On the issue of the present advocates for the applicants not being properly on record, counsel submitted that such a view is not correct and is not supported in law and insisted they are properly on record. Counsel cited several superior court decisions in support of the position taken by the applicants, including the case of Kenya Pipeline KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 5

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Company Limited versus Lucy Njoki Njuru [2014] KEHC 5103 (KLR) where the court stated that: “More importantly unlike the ordinary trial or review, or the interlocutory applications within the same cause or matter, an appeal is a “different ball game”. The proceedings are fresh or new, and are before a Superior Court, and a party, including both the Appellant or Respondent, are at liberty to change or instruct a new set of counsel to represent them.” Counsel submitted that the intended appeal has high chances of success and the application should be allowed. 8. The learned counsel for the respondent submitted inter alia that the applicants’ present advocate is not properly on record. In support of that proposition, counsel the case of Muchina versus Kihara [2024] KEELC 5533 (KLR) and Njogu versus Maganda [2024] KEHC 9253 (KLR). The counsel further submitted that the application is an afterthought and ought to be dismissed, for among other reasons that here was knowledge of judgment delivery despite late upload; that no application for the judgment or proceedings was made before lapse of judgment KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 6

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window; that it took the applicants more than 5 months to file the present application. 9. Counsel for the respondents submitted that extension of time to appeal is not a right, but an equitable remedy available to a deserving party at the discretion of the court, and that there should be reasonable explanation for delay, which delay should be explained to the satisfaction of the court. In support of that position, counsel cited the case of Misoi & 2 others versus Muhindi [2023] KECA 1295 (KLR) where at paragraph 9 the court held as follows; “…Therefore, the delay of over 2 months has not been explained at all. Even if I was to accept the explanation that the 1st applicant was taking care of her ailing husband between 10th January 2022 and 8th June 2022, the delay prior to 10th January 2022 has also not been convincingly explained. It is only after an explanation is offered that there can be a basis for exercising discretion in favour of an applicant. As was held by the Supreme Court in County Executive of Kisumu –vs- County Government of Kisumu & 8 others [2017] eKLR the whole period of delay should be declared and sufficiently explained. The applicants have KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 7

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failed to do so and there is no reason to exercise discretion in their favour.” It is the respondents’ prayer that the application be dismissed with costs. 10. The following are the issues arising from the application for the court’s determinations: a. Whether the application has been filed through a counsel improperly on record? b. Whether the application merited. c. Who pays the costs? 11. The court has considered the grounds on the notice of motion, affidavit evidence, submissions by the learned counsel, superior court decisions cited thereof and come to the following conclusions: a. On whether the applicants’ counsel is properly on record the respondents argues that the law firm of Mbugua Waihiga & Company Advocates was not on record in the lower court up to judgment and therefore there was need to comply with Order 9 Rule 9 of the Civil Procedure Rules, 2010, which states that; “9.Change to be effected by order of court or consent of parties KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 8

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When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court – (a) upon an application with notice to all the parties; or (b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” The respondents hold that the applicants’ have flouted the above provision, and relied on the decisions in the cases of Muchina versus Kihara [2024] KEELC 5533 (KLR) and Njogu versus Maganda [2024] KEHC 9253 (KLR). It is apparent the two decisions are of a persuasive value to this court as one is from the ELC, Muranga and the other the High Court, Embu. b. A miscellaneous application is a complete suit on its own, as it is not interlocutory application within the main suit, that is, Kerugoya CMCC ELC No. 159 of 2019. The intention of the legislature in Order 9 Rule 9 is as captured in the case of Francis KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 9

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Omondi Odhiambo versus Hippolitus Omondi Ochieng [2022] eKLR where the judge observed as follows; “17. In my considered view and as has been held in various court decisions and rightly posited by the respondent, the intent of Order 9 Rule 9 and 10 of the Civil Procedure Rules was to cure the mischief of litigants sacking their advocates at the execution stage or at the point of filing their bill of costs thus denying their advocates their hard-earned fees. Had this court been the first court of call, I would not have hesitated but upheld that once judgement has been rendered, leave has to be sought from the trial court. 18. However, the scenario is different in the instant, this court is sitting as an appellate court. Does one need to seek leave in such circumstances? Bearing in mind the provisions of Section 1A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act that courts have to ensure that cases are conducted in a manner that are just and expeditious. It is my view that Order 9 KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 10

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Rule 9 and 10 of the Civil Procedure Rules does not apply in instances of an appeal because the advocate’s instructions in a lower court are exhausted at the conclusion of a matter and requiring such leave would be tantamount to denying such an appellant representation of a right his choice to legal at an appellate stage thus negating the intent of just and expeditious disposal of a dispute.” c. Also in the case of Ondabu & another versus On’gayo [2025] KEELC 2924 (KLR) the court went further to explain what should happen when there is a different firm of advocates: “25. From the pronouncements above, it appears settled that an appeal is a new process and therefore a new advocate who was not on record in the proceedings of the court appealed from, need not file an application to come on record. The argument of the applicant, that the appeal was filed by counsel not properly on record therefore fails. 26. I have settled the issue but let me take this chance to posit that in so far as KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 11

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the proceedings in the lower court are concerned, unless there will be compliance with Order 9 Rule 9, the advocate in the appeal file cannot file anything in the lower court file, and the advocate on record therein up to the time of judgment still remains on record for purposes of any proceedings in the lower court. Thus, if execution proceedings undertaken in the lower are being court, the advocate on record up to the time of judgment is the one to proceed with that process and not the advocate in the appeal file. If the advocate in the appeal file wishes to take over, then, given that there is already judgment, there will be need to first comply with Order 9 Rule 9.” As already stated above, a miscellaneous suit is just a new process as is an appeal, hence the liberty of parties to choose who should represent them. d. It is apparent that different courts have interpreted the provision of Order 9 Rule 9, differently, and it is imperative to consider the position taken by courts whose decisions are binding on this court. I have sought guidance from the Court of Appeal decision in the case of Tobias M. Wafubwa versus Ben KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 12

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Butali [2017] KECA 142 (KLR) where it was held as follows: “We are of the same view, and would adopt the same approach in its entirety in matters concerning appeal. Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.” Applying the above rationale from the Court of Appeal, I take the view that the firm of Mbugua Waihiga & Company advocates is properly on record for the applicants, and that the provision of Order 9 Rule 9 of the Civil Procedure Rules does not KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 13

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apply to fresh suits or appeals, unlike processes in the same matter and court post judgement. e. On whether the application for leave to file an appeal out of time is merited it is trite that the delay in filing the memorandum of appeal should be explained. In the case of Salat versus Independent Electoral and Boundaries Commission [2014] KESC 12 (KLR) the & 7 others Supreme Court addressed the applicable guidelines as follows: “The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal: 1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; 2. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court; 3. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis; 4. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court; KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 14

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5. Whether there would be any prejudice suffered by the respondents if the extension was granted; 6. Whether the application had been brought without undue delay; and; 7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.” In the present application the applicants deposed at paragraph 3 of the supplementary affidavit thus: “3. That though it is true that judgment was read on 8th August, 2024 in the presence of our former Advocates, Nyaga Gitari & Co. Advocates, the same was only uploaded on 3 rd September, 2024 for our scrutiny, understanding and discussion with legal expert. That this was 5 days to the lapse of 30 days right of appeal” That deposition appear to suggest that though they had Nyaga Gitari & Co. Advocates, as their counsel then, they had to find a legal expert to help them understand the import of the judgment. f. The 1st applicant further deposed that the delay was occasioned when her father in law sustained a KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 15

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fracture around two weeks before 26 th November 2024. The two weeks before that date would mean the fracture occurred around 12 th of November, 2024, which would leave the delay from 7 th September, 2024 and 12th November, 2024 un-explained. The 1 st applicant went on to attribute the delay to the fact that she lost her father in law on 15 th December, 2024. That however does not explain the period of delay between that date and 20th February, 2025 when the first application for extension of time was filed in the High Court. g. The failure by the 2nd applicant to file the appeal in time was attributed sickness. It was claimed that the 2nd applicant has been ill since 23rd March, 2015, which would mean, she was already unwell when Kerugoya CMCC ELC No. 159 of 2019 was filed. Her ill health did not stop her from filing the said suit. There is no alluding that the 2 nd applicant’s sickness worsened after the judgment or shortly before it. h. As for the 3rd and 4th applicants, their failure to file an appeal in time was attributed to lack of resources as they earn their living from farming. If it is true the delay in filing the appeal timeously was due to difficulties with finances, there is no explanation tendered as to why they did not take advantage of the legal regime in this Country that provides for KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 16

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appeals by paupers under Order 44 of the Civil Procedure Rules, 2010. That rule provides as follows: “1. Who may appeal as a pauper [Order 44, Rule 1] Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application memorandum of accompanied appeal, and by a may be allowed to appeal as a pauper, subject in all matters, including the presentation of such application, to the provisions relating to suits by paupers in so far as those provisions are applicable: Provided that the court shall dismiss the application unless upon a perusal of the memorandum of appeal and of the record of the lower court, it sees reason to think that the decree is contrary to law, or against the weight of the evidence.” The explanations tendered by the applicants for the delay to file the appeal do not appear plausible. There exist gaps that have been not been explained from the time the judgment was delivered and when this application was filed. The finding in the case of KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 17

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Misoi & 2 others versus Muhindi (Supra) is instructive on this finding. It then follows that the application before this court lacks merit. i. On the prayer for temporary injunction, the same would have been worthy of consideration if the prayer for leave to file an appeal out of time was successful. The fact Ngariama/Thirikwa/1224 that the titles to and 1255, the suit properties, had reverted to the name of Jelipha Muthoni Njagi, mother to the parties herein, would not have prevented the court to consider the prayer for temporary injunction on its merit had the primary prayer have been granted. j. Under Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya, cost follow the events unless where the court is convinced to order otherwise on good grounds. In this case, all the parties herein are related and the suit parcels have been reverted to the name of their deceased mother for proper succession proceedings. The court would not wish to make the situation worse, but rather help the parties to work towards cultivating a good familial relationship. I therefore find this to be a good ground upon which to order that each party bear their own costs. KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 18

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12. Flowing from the above determinations, the court finds and orders as follows: a. That the applicants’ application dated 1 st April 2025 is without merit, and is dismissed. b. That each party shall bear their own costs. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. S. M. Kibunja EL C JUDGE In the presence of: Applicants – No Appearance. Respondents – Mr. Maina Kagio. KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 19

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Kinyua/Charles - Court Assistant S. M. Kibunja, EL C JUUDGE KERUGOYA ELCL MISC NO. E008 OF 2025 (RULING) 20

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