Peter Muruya Imbutsi v Kellam Makunda Nashiali & Another

c) That the annexed Notice of Appeal be deemed as duly filed upon payment of the requisite fees. d) That costs of this application be provided for. 2. The application is supported by the affidavit of the applicant dated 16th February 2026. It was the applicant’s case that he was not informed of the judgment by his advocate and that both himself and his advocate did not attend court for the judgment. That when he inquired about the judgment on 10th February 2026, that is when he was made aware of the judgment, and that 14 days had already lapsed. That the new advocate has been granted consent to represent him in this matter. That the mistake of counsel should not be visited upon the client and that no prejudice will be suffered by the respondent. 3. No response to the application was filed. Analysis and determination 4. The court has carefully considered the application and the supporting affidavit. The only issue that arise for the court’s determination is whether the applicant has demonstrated good and sufficient cause to justify extension of time for filing Notice of appeal. 2

page 2 of 6

5. Section 7 of the Appellate Jurisdiction Act, grants his court the jurisdiction to extend time within which to file Notice of appeal as follows; “Power of High Court to extend time The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.” 6. The discretion to extend time for filing Notice of Appeal ought to be exercised judiciously and not whimsically or arbitrarily. 7. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] e KLR, the Supreme court had the following to say on extension of time for filing an appeal; (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. 3

page 3 of 6

(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 reasonable reason for the delay, the delay should be explained to the satisfaction of the court. (5) Whether there will be any prejudice suffered 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.” 8. Therefore, to obtain extension of time, the applicant ought to explain the reason for delay to the satisfaction of the court, as the discretion to extend time ought to be exercised judiciously. The court will also consider the length of the delay and the prejudice to be suffered by the opposing party. 9. In the instant case, the judgment sought to be appealed against was delivered on 19th December 2025 in the absence of all the 4

page 4 of 6

parties in the suit, although the appellant’s counsel was in court on 29th October 2025 when the date for delivery of judgment was fixed. 19th December 2025 was a Friday. Order 50 Rule 4 of the Civil Procedure Act provides for computation of time and states that the period between 21 st December in any year and 13th January in the following year, both days included, shall be omitted from computation of time for filing of any pleading; provided that the rule does not apply to an application for temporary injunction. 10. Therefore, 14 days ended on 28 th January 2026. By filing the instant application on 16th February 2026, the appellant had delayed for 19 days. The appellant explained that his advocate did not inform him of the delivery of the judgment and he only became aware of the judgment on 10th February 2026 when he made an inquiry to his advocate. That explanation was not contested. In view of the reason given for the delay and the period of delay being 19 days, it is my view that the delay was not inordinate and the reason for the delay is excusable. 11. In the premises, I find and hold that the application dated 16 th February 2026 is merited and the same is hereby allowed. The appellant is granted 14 days to file and serve Notice of appeal. 5

page 5 of 6

As the application herein was unopposed, I make no order as to costs. 12. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 23RD DAY OF SEPTEMBER 2026 A. NYUKURI JUDGE In the presence of; Mr. Ommani for the applicant No appearance for the respondent Court Assistant: Delphine 6

page 6 of 6