Nyobange v Dimo & another

provisions of the law. The substantive prayer is that the Court grant the Applicant leave to file and mount an appeal out of the statutory period against the said judgment. 4. The application is premised on six grounds set out on its face and the supporting affidavit. The Applicant depones that he entered into agreements with the Respondents for the purchase of suit properties known as Homa Bay/Kamenya/5940 and Homa Bay/Kamenya/6065, pursuant to which the properties were transferred and title deeds issued in his name. 5. The Applicant’s case is that his occupation was subsequently threatened when the Respondents encroached upon and settled on the properties. Consequently, he instituted proceedings before the trial court seeking, among other reliefs, their eviction. The trial court delivered its judgment on 17th December 2025, finding that the first registered proprietor of the suit properties did not hold a valid legal title capable of being passed to the Applicant. Aggrieved by that decision, the Applicant seeks to challenge the entire judgment on appeal. 6. The Applicant explains that the delay was superintended by financial constraints and the fact that the judgment was delivered on 17 th December 2025, during the onset of the December court recess when his advocates were proceeding on holiday, making it difficult to issue timely instructions. He maintains that the failure to lodge the appeal within the prescribed period was neither deliberate nor intentional and urges the Court to exercise its discretion in his favor. The Respondents' Case 7. The application is opposed. The 2nd Respondent, Meshack Dwalo, swore a Replying Affidavit on 6th May 2026 contending that the application is devoid of merit and that the delay of approximately sixteen days beyond the 2|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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statutory timeline remains unsatisfactorily explained. 8. The Respondents challenge the Applicant's reliance on financial constraints, arguing that no evidence—such as an affidavit of means or financial statements—was tendered. They further submit that if the Applicant was genuinely indigent, he ought to have invoked the pauperis procedure, noting that as a County Executive Committee Member, he could not reasonably be financially incapacitated. Additionally, the Respondents argue that no prejudice or valid grounds were demonstrated to warrant the exercise of the Court's discretion. Submissions. 9. The application was canvassed by way of written submissions. The Applicant filed his submissions dated 19th May 2026. As at 18th August 2026, when the Court reserved this matter for ruling, the Respondents had not filed their written submissions. 10.The Appellant's Submissions: Dated 19th May 2026, the Appellant argued that the delay of approximately 16 days was caused by financial constraints and the fact that his advocates were on December holiday recess when judgment was delivered. He filed a Memorandum of Appeal containing eight grounds. 11.The Respondents' Position: The 2nd Respondent filed a Replying Affidavit on 6th May 2026 opposing the application, noting that no formal written submissions were filed by the Respondents by 18th August 2026. They contested the lack of proof for financial constraints, the absence of an affidavit of means, and claimed prejudice. ANALYSIS AND DETERMINATION. 12.The sole issue for determination is whether the Applicant has demonstrated 3|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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good and sufficient cause to warrant an enlargement of time to appeal against the judgment delivered on 17th December 2025. Section 79G of the Civil Procedure Act provides: "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 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 good and sufficient cause for not filing the appeal in time." 13.The principles governing applications for extension of time are well-settled. In Nicholas Kiptoo Korir Arap Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court set out the governing considerations: Extension of time is not a right of any party; it is an equitable remedy available to a deserving party at the discretion of the court.The party seeking extension bears the burden of laying a satisfactory basis.The discretion must be exercised on a case-by-case basis, taking into account the length of delay, reason for delay, prejudice to the respondent, and whether the application was brought without undue delay. 14.Similarly, in Paul Musili Wambua v. Attorney General & 2 Others [2015] eKLR, the Court of Appeal reaffirmed that judicial discretion to extend time must be exercised upon reason and not caprice, balancing the length of delay, reasons offered, prospects of success, and degree of prejudice. Length and Reason for Delay 4|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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15.The issue of inordinate delay is a question of fact, and as was defined in the case of inordinate delay, it is usually prolonged, excessive, or disproportionate time taken. However, as was held in the case of Ivita v. Kyumba (1984) KLR 441, the test to be considered is not just whether there was a delay but rather whether the delay is prolonged and whether justice can be done despite the delay. Ugandan Jurisprudence. 16.Under Ugandan Jurisdiction, Section 79(1) of The Civil Procedure Act provides that an appellate Court may for good cause admit an appeal though the period of limitation prescribed has elapsed. Good cause must relate to and include the factors which caused inability to file the appeal within the prescribed period of 30 days (see Tight Security Ltd v. Chartis Uganda Insurance Co. Ltd H.C. Misc. Application No. 8 of 2014). 17.In another decision of Attorney General and Gasper Onzi Obingu v. Okwi Robert Miscellaneous Application No. 0036 of 2019, the court held that an application for leave to appeal out of time should ordinarily be granted unless the applicant is guilty of unexplained and inordinate delay in seeking the indulgence of court, has not presented a reasonable explanation of his failure to file the appeal within the time prescribed by the act, or where the extension will be prejudicial to the respondent or the Court is otherwise satisfied that the intended appeal is not an arguable one. The court thus concluded that it would be wrong to shut an applicant out of court and deny him or her the right to appeal unless it can fairly be said that his or her actions were in the circumstances inexcusable or his or her opponent was prejudiced by them. 18.Whereas it is the court’s duty to ensure that a litigant is not unfairly denied the right to a hearing because of the expiry of time within which to appeal 5|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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and that such time should be extended, if necessary, the said extension shall still be subject to having a good cause as to why the person did not file their appeal on time. The term “good cause” has been defined by various cases. 19.In Muzamil Zamil Ayile versus Rose Taparke and Ors Miscellaneous Civil Application No. 0024 of 2013, the court explicitly explained the meaning and requirement of good cause when it held that: "When an application is made for enlargement of time, it should not be granted as a matter of course. Grant of extension of time is discretionary and depends on proof of 'good cause,' showing that the justice of the matter warrants such an extension. The court must scrutinize the application to determine whether it presents proper grounds justifying the grant of such enlargement. The evidence in support of the application ought to be very scrutinized. If that evidence does not clarify that the applicant comes within the terms of the established considerations, then the order ought to be refused..." 20.The applicant's reason for the delay is that he was not informed of his right to appeal at trial, and in the circumstances, he is entitled to an extension. Malawi Jurisprudence 21.In The Malaŵi Supreme Court of Appeal Civil Cause No. 18 of 2023 (being Civil Cause No. 78 of 2021, High Court, Mzuzu District Registry) Between: Registered Trustees of Khusi Trust and Force Ngwira, in instances where the Court has established or fixed a specific timeframe for the execution of any act prescribed or allowed by the Act or related rules, the Court retains discretion to enlarge the said period, irrespective of the expiration of the originally fixed timeframe. 6|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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22.In the present case, it is undisputed that the decision the Applicant seeks to challenge was rendered and that the assessment of damages is pending. Such decisions are subject to appeal only upon reaching finality and obtaining leave from either the High Court or the Supreme Court of Appeal, as delineated in Section 21 of the Supreme Court of Appeal Act. Consequently, the Applicant is supposed to first obtain leave or permission to appeal before making an application for enlargement of time, as illustrated in the case of Raiply Malawi Limited v. Mike Dzombe. The applicant having failed to obtain leave in the court below, this court cannot handle the application for want of jurisdiction. Application to the Instant Matter 23.The judgment sought to be impugned was delivered on 17th December 2025. The statutory 30-day period expired in January 2026. The present application was filed on 2nd February 2026, reflecting a delay of approximately sixteen (16) days. A delay of sixteen days is neither inordinate nor excessive. 24.While unsubstantiated assertions of financial incapacity are generally treated with caution, the Court must view the explanation in its holistic context. The judgment was delivered right at the start of the Christmas and New Year court recess. The Applicant moved the Court shortly thereafter on 2nd February 2026 alongside a fully drawn Memorandum of Appeal. This demonstrates promptness and a clear intention to exercise his statutory right of appeal. 25.Whereas there is a delay, the court is cognizant of the need to look not only at the amount of time it took for the application to be brought but, rather, also to consider whether justice would be served. The intended appeal is in respect of dismissal of the Applicant’s suit, which order continues to be in position, and therefore, the intended appeal continues to be relevant. 7|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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Therefore, the issue of unreasonable delay does not arise. It should also be appreciated that this is a land matter which is the livelihood of the applicant, and which he says cannot be accessed due to refusal by the Respondent’s to vacate. Chances of Success and Prejudice 26.The Applicant seeks to challenge the trial court’s finding on the validity of the legal title to the suit properties. Land ownership rights are serious constitutional and statutory matters that deserve full appellate scrutiny. The intended appeal is manifestly not frivolous. 27.Furthermore, the Respondents have not demonstrated any irreparable prejudice they would suffer if time is extended. On the other hand, refusing the application would permanently shut out the Applicant from contesting a decision directly affecting his registered proprietary interest. Regularization of the Appeal. 28.The Memorandum of Appeal was filed concurrently with the application for leave. As observed by the High Court in Martha Wambui v. Irene Wanjiru Mwangi & Another [2015] eKLR and Masoud M. Y. Noorani v. General Tyres Sales Ltd [2014] eKLR, Section 79G allows the Court to admit an appeal already lodged out of time by regularizing its filing. 29.In my view, the use of the term “admitted” connotes both the act of allowing an appeal to be filed out of time and also the act of allowing or permitting an appeal already filed to be admitted out of time (see Masoud M. Y. Noorani v. General Tyres Sales Ltd [2014] eKLR where Kasango J (as she then was) cited with approval Gerald M. Limelane v. Joseph Kangangi [2009] eKLR where the court stated: "My understanding of the proviso to section 79G is that an applicant seeking 8|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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'an appeal to be admitted out of time' must in effect file such an appeal and at the same time seek leave of court to have an appeal admitted out of the statutory period of time. The provision does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the stipulated period. To do so would actually be an abuse of the court’s process under Section 79B".) DISPOSITION. 30.Consequently, the Applicant’s Notice of Motion dated 29th January 2026 is hereby allowed on the following terms: 1. LEAVE be and is hereby granted to the Appellant to appeal out of time against the judgment delivered on 17th December 2025 in Homa Bay Chief Magistrate’s Court ELC Case No. E071 of 2024. 2. The Memorandum of Appeal dated 29th January 2026 and filed on 2nd February 2026 is hereby deemed as duly filed and admitted out of time. 3. The Appellant shall serve the Memorandum of Appeal upon the Respondents within fourteen (14) days from the date of this ruling. 4. The costs of this application shall abide the outcome of the main appeal. DATED, SIGNED, AND DELIVERED ELECTRONICALLY AT HOMA BAY THIS 16TH DAY OF SEPTEMBER 2026. .................................................... HON. JUSTICE J. W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT 9|Page HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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In the presence of; 1. Kimberly for Obwanda for the Applicant – Present 2. Okundu for the 1st and 2nd Respondent – Present 3. Ms. Awino, Court Assistant. 10 | P a g e HOMA BAY ELC APPEAL NO. E007 OF 2026, RULING

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