Maganga v Nundu (Sued as the legal administrator of the Estate of Charles Nundu Ojunge - Deceased)

II. Summary of Pleadings and Submissions. The Applicant’s Case 2. The application is supported by the adavit of Quinter A. Adoyo, counsel for the Applicant, sworn on 9th April 2026. The Applicant contends that a Memorandum of Appeal was prepared on 16th February 2026 within the statutory 30-day window. However, an unexpected power outage in Homa Bay Town lasted two days (17th and 18th February 2026). When power was restored, the Judiciary Case Tracking System (CTS) failed to generate an invoice. 3. Despite eorts to seek assistance from the ICT support desk, payment was only successfully processed and a case number issued on Sunday, 22nd February 2026, three days past the 30-day mark (which fell on 19th February 2026). 4. The Applicant initially lodged an application for stay and deeming order vide ELC Appeal No. E011 of 2026. However, on 24th March 2026, upon recognizing a jurisdictional hurdle under Order 42 Rule 6, the Applicant withdrew the said application and the main appeal to le the instant application. Counsel asserts that the delay was beyond the Applicant's control and caused no prejudice to the Respondent. The Respondent’s Case 5. In opposition, the Respondent led Grounds of Opposition dated 29th May 2026 and written submissions. The Respondent argues that the Applicant failed to explain the initial 26-day delay between 20th January 2026 and 16th February 2026. Furthermore, the alleged power and system outages were completely unveried by third-party evidence (such as KPLC or ocial Judiciary public notices). 6. The Respondent further points out that after withdrawing the previous appeal on 24th March 2026, the Applicant indolently waited an additional 21 days before lodging the present application on 10th April 2026. The Respondent submits that the intended appeal lacks merits as the trial court's decision was solidly based on the doctrine of constructive trust. III. The Law and Authorities 7. The core issue before this Court is whether the Applicant has demonstrated "sucient cause" or "good reason" to warrant the exercise of judicial discretion to extend time under Section 79G of the Civil Procedure Act. Kenyan Jurisprudence 8. The governing principles on extension of time were settled by the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where the Court established that: i. Extension of time is an equitable remedy available only to a deserving party at the discretion of the court; ii. The applicant bears the burden of laying a satisfactory basis for the delay; iii. The explanation for delay must be reasonable, full, and honest; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5811/eng@2026-09-21 2

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iv. 9. The court must consider the degree of prejudice to the respondent and whether the application was brought without undue delay. In Wachira Karani v. Bildad Wachira [2016] eKLR, citing the Supreme Court of India in Primal v. Veena, "sucient cause" was dened to mean that a party has not acted negligently, fraudulently, or remained inactive without bona des. Ugandan Jurisprudence 9. The courts in Uganda have similarly applied Section 79(1)(b) of the Civil Procedure Act (Uganda) regarding the enlargement of time. Tiberio Okeny & Another v. Attorney General & 2 Others, C.A Civil Appeal 20 No. 51 of 2001, the considerations for the exercise of the court’s discretion to grant or not an application of this nature were outlined thus: a. The Applicant must show sucient reason, which must be related to the inability or failure to take some particular step within the prescribed time. b. The administration of justice normally requires that the substance of all disputes be investigated and decided on the merits and that error and lapses should not necessarily debar a litigant from pursuing his rights. c. Whilst mistakes of counsel sometimes may amount to sucient reason, this is only if they amount to an error of judgment but not inordinate delay or negligence to observe or ascertain plain requirements of the law. d. Unless the party was guilty of dilatory conduct in the instructions of his lawyer, errors or omissions on the part of counsel should not be visited on the litigant. e. Where an applicant instructed a lawyer in time, his/her right should not be blocked on grounds of the lawyer’s negligence or omission to comply with the requirements of the law. It is only after sucient reason has been advanced that a court considers, before exercising its discretion, whether or not to grant the extension, the question of prejudice, the possibility of success, and other factors. 9. Moreover, as armed by the Supreme Court of Uganda in Uganda Railways Corporation v. Ekwaru D. O & 5104 Others (Civil Appeal No. 07 of 2019), statutory time limitations govern jurisdiction, and a court must rigorously ensure that delay is properly accounted for before exercising discretion to revive extinguished statutory windows. 10. In the case of Ssekazi Godfrey Versus Kyeyune David Civil Appeal No. 109 of 2015, the Court of Appeal observed that an appeal led out of time, without an order of court, is incompetent and ought to be struck out. That ling a memorandum of appeal out of time, without an order of extension of time within which to appeal, makes the memorandum of appeal not properly before the court, and there exists no appeal at all. 11. In Uganda Railways Corporation Versus Ekwaru D.O and 5104 Others, SCCA No. 07 of 2019, Hon. Mike Chibita JSC observed that: “Once the time period limited under statute expires, the plainti’s right of action will be extinguished and will become unenforceable against a defendant.” 12. Similarly, Ojara Otto Julius Vs Okwera Benson, HC M.A No. 023 of 2017, the court held that an application for enlargement of time should not be granted as a matter of course. The court is required to carefully 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 carefully https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5811/eng@2026-09-21 3

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scrutinized. If that evidence does not make it quite clear that the applicant comes within the terms of the established considerations, then the order ought to be refused. It is only if that evidence makes it plain that the applicant is entitled to an extension that the application should be granted and the order made, for such an order may deprive the respondent of a very valuable right to the nality of litigation. 13. In the case of Bishop Jacinto Kibuuka –vs- The Uganda Catholic Lawyers Society & 2 Others MA 0696 of 2018, Justice Ssekaana Musa cited the case of The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others that was quoted in Gideon Mosa Onchwati vs Kenya Oil Co. Ltd & Another [2017] KLR which discussed what sucient cause amounted to and said that: Page 10 of 11 “It is dicult to attempt to dene the meaning of the words ‘sucient cause’. It is generally accepted however, that the words should receive a liberal construction in order to advance substantial justice, when no negligence, or inaction or want of bona des, is imputed to the appellant.” 14. In the same Kenyan authority of Gideon Mosa Onchwati (supra) reliance was made on the Supreme Court of India case of Parimal vs Veena , which attempted to describe what was "sucient cause" when it observed that: “ Sucient cause" is an expression which has been used in large number of statutes. The meaning of the word "sucient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, the word "sucient" embraces no more than that which provides a platitude which when the act done suces to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man. In this context, "sucient cause" means that party had not acted in a negligent manner or there was want of bona de on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive." However, the facts and circumstances of each case must aord sucient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously”. Malawian Jurisprudence 9. The principles governing extension of time in Malawi align closely under Section 23(2) of the Supreme Court of Appeal Act. In Registered Trustees of Khusi Trust v. Force Ngwira (MSCA Misc. Civil Application No. 18 of 2023) and Mike Appel & Gatto Limited v. Saulos Chilima [2014] MLR 231, the High Court and Supreme Court of Appeal held that time limits are set to bring nality to litigation. Discretion to enlarge time requires an applicant to present a full, transparent, and compelling account for the entire spectrum of default without leaving critical gaps. IV. Analysis and Determination 9. Applying these comparative legal tenets to the instant application, this Court observes two fatal defects in the Applicant's request: i. Partial Explanation: The Applicant concentrates solely on the 4-day period between 17th February and 22nd February 2026. Absolutely no explanation is oered for why no step was taken during the rst 26 days following the delivery of judgment on 20th January 2026. The Court notes that, an explanation covering only the tail end of a limitation period does not amount to "sucient cause." https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5811/eng@2026-09-21 4

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9. ii. Inordinate Post-Withdrawal Delay: After withdrawing the previous incompetent appeal on 24th March 2026, the Applicant slept on his rights for another 21 days before ling the present motion on 10th April 2026. The excuse of counsel traveling to Tanzania on bereavement is unbacked by annexures. Viewed cumulatively, the delay spans well over two months without a full and honest explanation. It appears Counsel took advantage that the Court was on vacation and Counsel took a misstep by travelling out of jurisdiction without any arrangement as to how the matter would be attended to. iii. Counsel Swearing Adavit: The Court notes that the adavit in support of the application has been Sworn by Counsel. Under the Kenya Law, an advocate is strictly prohibited from swearing a supporting or replying adavit on contentious matters of fact on behalf of the client. In so doing Counsel creates a severe legal muddle and leaves the application vulnerable to being struck out. In the same vein, an advocate makes himself/ herself vulnerable to cross examination on the case which he /she is handling merely as an agent which practice is irregular (See Regina Waithira Mwangi versus Boniface Nthenge (2015) eKLR. The court nds that there is no adavit from the Client giving an explanation of facts leading to the late ling. This court depreciates such a practice of swearing adavit and will not hesitate to strike out such an adavit in future. While this Court is mindful that procedural lapses should not readily bar a party from testing a judgment on appeal, equity cannot aid an Applicant who exhibits continuous lethargy and fails to discharge the evidentiary burden of proof. The Respondent has earned a lawful decree that ought not to be kept in suspense indenitely without justiable cause. V. Orders 9. Consequently, the Notice of Motion dated 10th April 2026 lacks merit and is hereby Dismissed. 10. Costs of this application are awarded to the Respondent pursuant to Section 27 of the Civil Procedure Act. DATED, SIGNED, AND DELIVERED ELECTRONICALLY AT HOMA BAY THIS 21ST DAY OF SEPTEMBER 2026. ............................................. JUSTICE J.W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT In the Presence of; 1. Oyala for the Respondent, Present. 2. Ngani for the Applicant, Present 3. Court Assistant, Awino https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5811/eng@2026-09-21 5

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