Naomi Aludi Osieko v Eliud Ogeso, Charles Oguta, Migori County Land Registrar & Migori County Surveyor

2. …Spent 3. …Spent 4. THAT the Honourable Court be pleased to grant leave to the applicant to appeal out of time against the judgement made by the Hon. Naomi Wairimu SPM sitting at Migori Law Courts Migori MCELC Case No. 31 of 2020 on 5th December 2024. 5. THAT there be a stay of execution in respect of the said judgment delivered on 5th December 2024 pending the hearing and determination of the appeal. 6. THAT the Honourable Court be pleased to specify the period for an appeal. 7. THAT the Honourable Court issues any further orders as it deems fit. 3. The application is supported by the grounds contained in the application as well as the grounds contained in the affidavit of Naomi Aludi Osieko, the applicant. The applicant’s case is that the trial court rendered its judgment in Migori MCELC Case No. RULING ELCMISC NO E013 OF 2025 2

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31 of 2020 on 5th December 2024. The judgment was not in her favour. Dissatisfied with the decision of the court, she decided to pursue an appeal. However, she did not file an appeal within the statutorily mandated period for several reasons. The applicant blamed her former advocate for not communicating the fact of the existence of the judgment in question until 30 th December 2024, by which time, the period for filing an appeal had already lapsed. Even after becoming aware of the judgment of the trial court, the applicant maintained, she was unable to file an appeal since she was not able to raise funds to enable her instruct an advocate to represent her. She also stated that she is an elderly woman who is of ill health and therefore unable to follow through the progress of the case. 4. Further, the applicant also stated that she had never received any response to her application dated 8 th January 2025 in which she requested for the judgment as well as proceedings before the trial court. She also asserted that she has an arguable appeal with a high chance of success and added that the respondents will not suffer any prejudice should her application be allowed. RULING ELCMISC NO E013 OF 2025 3

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5. The applicant’s affidavit in support of the application replicates the contents of the application save to state that the applicant annexed to the said affidavit, a copy of the trial court’s judgment dated 5th December 2025. She also annexed evidence of having requested for the trial court’s judgment and proceedings, including a letter dated 8 th January 2025 requesting the same. Response 6. The 1st and the 2nd respondents (the respondents) filed Grounds of Opposition dated 11th June 2026. Their position is that the applicant’s application is misconceived, incompetent, and amounts to an abuse of court process. They maintained that the judgment of the trial court delivered on 5 th December 2024 is incapable of being stayed since the same is a negative order that required the applicant to do nothing or refrain from doing nothing other than the payment of costs. 7. The respondents equally stated that the applicant has not shown any substantial loss that she would suffer as mandated by order 42 Rule 6 of the Civil Procedure Rules. They further RULING ELCMISC NO E013 OF 2025 4

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stated that the applicant had not shown sufficient cause to warrant extension of time to lodge the appeal as prayed. The applicants also asserted that the applicant has not adequately explained why she delayed filing the appeal for a period of about five (5) months. 8. Concerning the prayer on maintenance of status quo, the respondents stated that the same is vague, ambiguous and incapable of enforcement since the trial court did not grant any injunctive of preservertory orders. they contended that granting the prayer at this stage would amount to issuing fresh injunctive orders in favor of the applicant after her suit was dismissed on merit. 9. The respondents also stated that allowing the application would unjustly prejudice considering that they are entitled to enjoy the fruits of their successful defence. 10. Lastly, the respondents concluded that the application has not met the threshold for grant the orders sought, that is, stay of stay of execution, maintenance of status quo or leave to appeal out of time and prayed that it be dismissed with costs. RULING ELCMISC NO E013 OF 2025 5

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Submissions 11. The application was canvassed by way of written submissions. The respondents did not file submissions. The applicant filed her submissions dated 3 rd July 2026. She identified three issues for determination: whether the applicant has met the conditions for leave to appeal out of time; whether the applicant has satisfied the condition for grant of stay of execution under order 42 rule 6 of the civil procedure rules; and, who should bear the costs of the application. 12. As to whether the applicant had met the conditions for leave to appeal out of time, reliance was place on section 79G of the Civil Procedure Act to submit that the court has jurisdiction to grant leave to an applicant to appeal out of time provided the applicant demonstrates that he/she has a good and sufficient cause for appealing out of time. The applicant relied on the Supreme court decisions in Nicholas Korir arap Salat v Independent Electoral and Boundaries Commission [2024] eKLR and Paul Musili Wambua v the Attorney General & 2 others [2015] eKLR to highlight the factors that RULING ELCMISC NO E013 OF 2025 6

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this court ought to consider when determining whether to grant her leave to appeal out of time. 13. The above considerations include among others, the appreciation that extension is not a right of a party, but rather an equitable remedy that should only be granted at the discretion of the court and to deserving litigants only. Moreover, the applicant should explain to the satisfaction of the court the reason for unreasonable delay. Equally, the applicant should demonstrate that the respondent will not suffer any prejudice should the application be allowed and that the application was brought timeously. 14. The applicant submitted that the decision which she intends to appeal against was delivered on 15 th December 2024. However, she was not aware of the judgment until 30 th December 2024 when her previous advocate on record informed her about the same. the applicant further submitted that she did not file the appeal at the point when she discovered the existence of the because she did not have the finances to instruct a new advocate to file the appeal on her behalf. She submitted that she resorted to raising finances for RULING ELCMISC NO E013 OF 2025 7

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purposes of pursuing an appeal. On 8 th January, 2025 she requested for a copy of the judgment and proceedings, and stated that the latter has never been availed to date. Lastly, the applicant submitted that she is elderly and of ill health hence she was unable to follow through the matter hence the delay in filing her intended appeal. 15. Furthermore, the applicant submitted that the delay in filing her appeal was neither deliberate nor inordinate. Rather, it was occasioned by circumstances beyond her control as highlighted above. She also asserted that her appeal raises arguable issues, being the trial court’s failure to summon the County Surveyor and the Sub-county Forestry Officer so as to ascertain the boundaries of the suit property. 16. The intended appeal, the applicant submitted is arguable since it relates t encroachment into the applicant’s land and the destruction of her property. 17. As to whether the respondents would suffer any prejudice, the applicant submitted that the respondents have not shown any prejudice that they would suffer should the application be allowed. In any event, she stated that any prejudice suffered by RULING ELCMISC NO E013 OF 2025 8

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the respondents can be adequately compensated by way of damages. On the contrary, she submitted that disallowing the intended appeal would deny her statutory right of appeal. 18. On the issue of whether stay of execution pending the intended appeal should be granted, the applicant relied on the provisions of Order 42 Rule 6 of the Civil Procedure Rules 2010 to highlight what an applicant in such position must demonstrate. Accordingly, the applicant submitted that such an applicant should demonstrate substantial loss on his part; that the application was filed promptly and that the applicant is willing to provide security. 19. The applicant submitted that she is likely to suffer substantial loss should the application not be allowed because she risks losing a portion of her land through encroachment hence the substratum of the appeal is likely to be permanently altered before the hearing and determination of the intended appeal. She thus prayed that the court preserves the substratum of the appeal by directing that the status quo be maintained pending the hearing and determination of the appeal. RULING ELCMISC NO E013 OF 2025 9

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20. Finally, on the issue of costs, the applicant prayed that the same be the cause. She emphasized that the circumstances leading to the delay of her application were beyond her control and that the application was nevertheless brought without undue delay. Issues, analysis and determination 21. After carefully analyzing the application, the grounds of opposition and the submissions filed by the applicant, it is the court’s considered view that the issues that arise for determination herein as follows: a. Whether the applicant has satisfied the conditions for grant of leave to file an appeal out of time; b. If the answer to the a) above is in the affirmative, whether an order of stay of execution pending appeal should issue; c. Who should bear the costs of the application. 22. I will now determine the issues sequentially. a) Whether the applicant has satisfied the conditions for grant of leave to file an appeal out of time RULING ELCMISC NO E013 OF 2025 10

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23. The issue herein is that the applicant having not filed an appeal out of time contends that it was beyond her ability or power, and therefore this inability would fall under the exceptions the law does permit. This is related to the provisions of the law regarding appeals out of time. 24. The law in issue here is Section 79G of the Civil Procedure Act, which provides as follows concerning the timelines for the filing of appeals from subordinate courts: 79G. Time for filing appeals from subordinate courts 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: RULING ELCMISC NO E013 OF 2025 11

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Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 25. Despite the strict timelines provided in Section 79G, the proviso thereto grants courts the power to allow the filing of appeals outside the stipulated timelines where the appellant/ applicant satisfies the court that he has ‘good and sufficient cause’’ for failing to file the appeal within time. 26. The Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) set out the considerations that courts should have when determining whether or not to extend time to enable an appellant to appeal out of time. The court determined that: ‘‘85. 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 under-lying principles that a Court should consider in exercise of such discretion: RULING ELCMISC NO E013 OF 2025 12

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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; Whether there will be any prejudice suffered 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...’’ (emphasis added). 27. The judgment against which the intended appeal is preferred was rendered on 5th December 2024. The instant application was filed on 12th May 2025, five months after the impugned judgment was delivered. It is not in dispute that the time for filing an appeal lapsed hence the instant application seeking to RULING ELCMISC NO E013 OF 2025 13

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file an appeal out of time. The explanation given for the delay is that the applicant did not get to know of the existence the judgment of the trial court until 30 th December 2024. She blamed her previous advocate on record for failing to communicate about judgment hence her delay in filing for the intended appeal. She also stated that she decided to pursue an appeal immediately she learnt of the judgment but did not have money to instruct an advocate to pursue an appeal on her behalf, hence she devoted time to look for money rather than pursue the appeal. 28. Further to the foregoing, the applicant stated that she managed to instruct an advocate to file a request for proceedings before the trial court vide a letter dated 8 th January 2025, which proceedings have never been availed to her. She also stated that her old age and ill-health could not allow her to pursue the matter hence the delay. The court is called upon to assess whether the delay in filing the appeal was inordinate and whether the reasons advanced for the delay in the filing appeal constitute a good and sufficient cause. RULING ELCMISC NO E013 OF 2025 14

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29. In Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16 (KLR) (Petition (19 May 2022) 4 of 2020) (Judgment), the Supreme Court pronounced itself as hereunder concerning inordinate delay: ‘‘139.In defining what length of delay qualifies to be inordinate, it is recognized that ‘time’ is a relative and subjective concept and that in the context of judicial processes, as we shall demonstrate shortly, the principal issue may not be the extent of delay, but its reasonableness and justification for it. 140.Secondly, as the Tribunal, correctly acknowledged, there is no single universally accepted definition of the word “inordinate”. It, however noted that; “540…there can be no definition cast in stone as to what amounts to inordinate delay but the same can only be determined on a case by case basis within the context of the facts therein. It is not RULING ELCMISC NO E013 OF 2025 15

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only the length of time but a consideration whether the reasons advanced for the delay are rational and justifiable and whether on account of the delay prejudice has been occasioned on any of the parties”. 141.Salmon LJ, while explaining the meaning of inordinate delay in widely cited Allen v Sir Alfred McAlpine and Sons Ltd [1968] 1 All ER 543 said; “It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognize when it occurs. 143.Broken down, the authorities stress the points that, whether a delay is inordinate is a question to be determined on a case by case basis and on the peculiar RULING ELCMISC NO E013 OF 2025 16

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facts and circumstances; that inordinate delay should not be difficult to discern where it occurs- it should be apparent, self-evident and obvious. The focus should not be on the length of the delay per se, but also on the justification and reasons, which in turn must be rational and plausible; that where the delay is prolonged, it is in the discretion of the court to consider, whether justice can still be done despite the delay. In addition, the prejudice likely to be occasioned to any party is equally an important consideration.’’ (emphasis added). 30. Flowing from the aforestated, it is important to appreciate that what amounts to inordinate delay is not cast on stone; rather, whether delay is inordinate or otherwise will depend on whether it has been accounted for to the satisfaction of the court, and the same is evaluated on a case by case basis. 31. In the instant case, the applicant states that she could not file her appeal in good time because her previous advocate did not communicate to her in good time about the delivery of the trial court’s judgment. She also stated that she is elderly and ill hence she was unable to follow up on the matter. The applicant RULING ELCMISC NO E013 OF 2025 17

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stated that she did not have the money to instruct a new advocate to take up the matter. 32. It noteworthy that applicant admits that she learnt of the judgment before the time elapsed although it was towards the tail end of the time. On 8th January, the applicant instructed an advocate to write a letter requesting for the judgment and proceedings before the trial court instead of filing an application seeking leave to enlarge time and file an appeal out of time. The court is curious about the applicant’s choice of actions: which why didn’t the applicant the advocate instruct the advocate to file the instant application, as at 8 th January 2025 and choose to wait until 12th May 2025 to do the same? She does not sufficiently explain why the delay past the time when she was allegedly informed of the judgment and or from 8th January 2025 when she requested for proceedings until 12 th May 2025. 33. The applicant also blamed her previous advocate for failing to inform her of the trial court’s judgment in good time but failed to adduce any evidence to support these allegations. Whereas the court appreciates that litigants should not be RULING ELCMISC NO E013 OF 2025 18

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punished for the mistakes of their counsel, it would have been prudent for the applicant to adduce evidence in support of her assertions considering that she bears the burden of proofing the said allegations. She did not. The burden of proving the same remained undischarged. 34. Equally, the applicant asserted that she applied for a copy of typed proceedings, the court notes that the absence of the said proceedings does not in any way affect the filing of a Memorandum of Appeal before this court. If she contends that the could not file the appeal in time because she did not have proceedings, then how is it that she was able to determine that her intended appeal is merited yet to date she has never been supplied with the proceedings? In my humble view, it appears to me that the applicant knew all along before the lapse of time to appeal the content of the judgment and proceedings, which in any event she participated in at the hearing, but chose not to appeal in time. These sentiments were echoed in Kathuri v Waithaka (Civil Appeal E274 of 2023) [2024] KEHC 8657 (KLR) (Civ) (12 July 2024) (Ruling), where the High court determined that: RULING ELCMISC NO E013 OF 2025 19

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‘‘11. The appellant brought the application for extension of time five months after the impugned ruling was delivered. He blames the delay on the courts which he has demonstrated issued him with the typed proceedings and certified copy of the ruling on 15th February 2023. He filed the present application on 5th April 2023. This court is of the considered view that the failure by the courts to furnish the appellant with a certified copy of the ruling and typed proceedings within the requisite period does not constitute sufficient cause to extend time for filing appeal. The reason is that both said documents are not necessary at the time of filing of appeal in the High Court. 17. In this instant, the applicant has not explained to the satisfaction of this court the reason for the delay in filing the memorandum of appeal within 30 days as envisaged by the rules. Certified copies of the ruling and typed proceedings are not a prerequisite to the filing of an appeal before the High Court and so absence of the said documents cannot constitute a RULING ELCMISC NO E013 OF 2025 20

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sufficient reason for failure to file a memorandum of appeal within time. Moreover, even after being furnished with the said documents, the applicant took a record 49 days before filing the application for enlargement of time. The delay was never accounted for. The applicant has therefore failed to lay a basis, to the satisfaction of the court, upon which extension can be granted. I find that the delay in lodging this application was inordinate.’’ (emphasis added) 35. The applicant also stated that she is elderly and suffering from ill-health. Despite making these allegations, the applicant did not avail any evidence to buttress the same. As was held in Salat v The Independent Electoral & Boundaries Commission & 7 others (supra) the applicant has the duty of laying a basis for her case. In Muchina v Micere (Civil Application E013 of 2026) [2026] KECA 1342 (KLR) (3 July 2026) (Ruling), the court of appeal disallowed an application for enlargement of time to appeal out time because the applicant had cited ill-heath but failed to provide supporting medial records. The court reasoned that: RULING ELCMISC NO E013 OF 2025 21

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‘‘11. The explanation advanced for the delay is that the applicant suffered depression. He has not placed any medical evidence before the Court to show that he indeed suffered from depression that incapacitated him and prevented him from taking steps to file an appeal, and for an extended period of over four years.’’ 36. Similarly, in Ambrose Gichunge v Newlife Church of Kenya & 2 others [2022] KEHC 1961 (KLR), the court dismissed an application where the applicant had not provided evidence of medical treatment despite stating that he had been ill. The court held: 11. This application was filed one year and seven months from the date of the impugned ruling. Whereas there is evidence that the Applicant has been undergoing treatment for some time, the Applicant has not discharged the evidential burden to demonstrate that during the 1 year and 7 months’ period, he was so incapacitated by illness as to be unable to file the intended appeal. 12. From the foregoing, I find that the unexplained delay disentitles the Applicant to this Court’s discretionary RULING ELCMISC NO E013 OF 2025 22

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remedy for the reason that Equity does not aid the indolent. 37. The above two decisions can be distinguished from the Court of Appeal decisions LWL alias LWJ v SANL (Civil Application E010 of 2021) [2021] KECA 29 (KLR) (23 September 2021) (Ruling) and the high court decision in Everlyne Jennifer Mwaka v Ronald Anzelimo Kongoti , Kakamega Misc. Civil Application No 69 of 2019 where the applicants provided evidence to buttress their allegations on ill health. in both cases, the courts found the applicants’’ applications plausible and enlarged time in their favour. 38. Although the applicant application would amount submitted to denial that of dismissing her his statutorily guaranteed right of appeal, the court disagrees. As was held in Salat v IEBC & 7 others (supra), enlargement of time to appeal out of time is not a right of a party. the court does not find the reasons for the delay advanced by the applicant plausible and the same do not constitute a good and sufficient reason. The delay is inordinate and the same has not been explained to the satisfaction of the court. Accordingly, the RULING ELCMISC NO E013 OF 2025 23

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applicant’s prayer seeking leave of the court to file an appeal out of time is hereby declined. 39. Having declined the prayer to extend time to appeal out of time, the prayer on stay of execution pending appeal is without legs and equally falls. 40. On costs, Section 27 of the Act gives the court discretion to award costs although it provides that they ordinarily follow the event. I have considered the unproved allegations that the applicant is an elderly lady who is unwell. Although as I have stated the applicant has not proved these two facts, granted that they may be true, if so, I exercise my discretion to order that each party to bear their own costs of the application. 41. Orders accordingly. Ruling dated, signed and delivered virtually via the Teams Platform this this 22nd day of September 2026. HON. DR. IUR NYAGAKA, JUDGE In the presence of, Mr. Odhiambo Advocate for the Applicant Rhobi State Counsel, for the 3rd Respondent (absent) RULING ELCMISC NO E013 OF 2025 24

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S. O. Onyango Advocate for the 1st and 2nd Respondents (absent) RULING ELCMISC NO E013 OF 2025 25

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