Nyaga & another v Gitau & another

2. The motion is supported by several grounds presented on its face and by the supporting adavit of the 2nd applicant sworn on the instant date. He succinctly asserts that the applicants missed the ling deadline due to an oversight and confusion from a le transfer between courts. They state that the delay caused no prejudice to other parties and request permission to proceed with their appeal, with the documents ready to le if permission is granted. They state that they led a memorandum of appeal dated 9 September 2024 out of time without leave, which forced them to withdraw it. 3. The respondent strenuously challenges the application via her replying adavit, sworn on 3 March 2026. In summary, she informs the court that the applicants initially led Machakos ELCA No. E198 of 2024, which was dismissed for being led out of time. Later, the applicants led ELCA E003 of 2024 in the Machakos High Court, which was withdrawn. She asserts that the applicants have been represented by counsel all along, who should have guided them on the procedure. She contends that allowing the application will prejudice her. 4. When the application came up for hearing on 21 May 2026, Mr. Owala, counsel for the applicants, urged this court to grant the reliefs sought, while Mr Ondieki, for the respondent in opposition, relied on the respondent’s replying adavit and urged this court to dismiss the application. Accordingly, the court has thoroughly examined the motion, its grounds, adavits, and oral submissions, and it suces to say that the sole issue for determination is whether an extension of time should be granted to the applicants. 4. In addressing the distilled issue, it is imperative for this court to emphasise the pertinent legal provisions concerning the extension of time to lodge an appeal. Concerning this matter, as indicated on the face of the motion, Section 79G of the Civil Procedure Act stipulates that any party involved in proceedings before the lower court who is dissatised with its decision may, within 30 days of the decision, lodge an appeal to the superior court authorised to hear such appeals. 6. Nonetheless, in cases involving delays, parties may, as the applicant has done, make an application to the court under Section 95 of the Civil Procedure Act, requesting the court to exercise its sound discretion based on valid and sucient grounds. The court may, at its discretion, subsequently extend the prescribed period, even if the initial period has expired. Section 79G of the Civil Procedure Act states; “ 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.” While Section 95 of the Civil Procedure Act provides as follows: “ Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired.” 7. In regard to the prevailing jurisprudence, the decision of the apex court, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, espoused the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5878/eng@2026-09-29 2

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guiding non-exhaustive principles that guide courts in entertaining applications of this nature. In this decision, the apex court summarised the non-exhaustive principles as follows: 7. “ 1. 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; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5. Whether there will be any prejudice suered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” Further, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR), the Court of Appeal stated: “ (12) The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 7. In considering the motion, this court must bear in mind that, although it has unfettered discretion, it must exercise that discretion judiciously, grounded in reason, material, and evidence placed before it. Furthermore, the circumstances of each case are unique, as even a single day can amount to a delay, and each case must be considered on its own set of conditions. 7. Respecting the rst point for consideration of delay, it is undeniable that the motion is led with undue delay as the impugned judgment is alleged to have been rendered on 16 October 2024 and the motion was led on 4 September 2025; a period of about one year. 7. As for the second point concerning a reasonable and satisfactory explanation, this court, after considering the reasons for the delay, scrutinising the annexures and checking the history of ELCA No. In E003 of 2024 in the Court Tracking System (CTS), it emerges that the applicants led a memorandum of appeal against the impugned judgment in the Machakos High Court on 24 July 2024, rather than before this court. This appeal was led within time. 7. This appeal was subsequently transferred to this court, which issued orders maintaining the status quo and also directed the canvassing of the applicants’ pending application dated 6 August 2024 by way of written submissions. However, instead of ling written submissions, the appellants voluntarily withdrew the appeal, and the court adopted the withdrawal as an order on 9 July 2025. 7. Having regard to the history of ELCA No. E003 of 2024, this court concurs with the respondent that the application is an afterthought, and in the court’s mind, the applicants are untruthful and intended https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5878/eng@2026-09-29 3

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to mislead the court. It arises that ELCA No. E003 of 2024 was properly led on 24 July 2024, the last day of ling. There was no confusion respecting the transfer of the appeal from the High Court to this court, as the applicants’ counsel appeared on multiple occasions before this court in relation to that appeal and even led a record of appeal on 9 October 2024, shortly after the transfer. 7. Suce it to say, the reasons for the delay as advanced by the applicants are economical with the truth or are altogether deceitful, as the court record in ELCA No. E003 of 2024 speaks for itself. Moreover, there was a delay in ling the instant motion, as it was led nearly two months after the withdrawal of ELCA No. E003 of 2024. This court nds that the reasons for the delay have not been satisfactorily explained. 7. In the end, the notice of motion dated 4th September 2025 is dismissed with costs to the respondent. The le is hereby marked as closed. It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2026. HON. A. Y. KOROSS JUDGE 29.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Mr. Owala for the applicant. Mr. Ondiek for the respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5878/eng@2026-09-29 4

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