Aggrey Otiato Opudo v Harish Meghji Rabadia

well as enlargement of time to file record of Appeal out of time , and the record of appeal if fi led contemporaneously with application be deemed as duly filed upon payment of the requisite fees or if not filed to be filed within such period to be directed by the court . The application is supported by the Affidavit of the Applicant sworn on July 17,2026 and the grounds of even date. The appellant averred that the delay in filing the record of appeal was not deliberate nor intentional, but was instead occasioned by challenges in obtaining the typed proceedings from the magistrate's court in a timely manner. The Applicant is ready and willing to prosecute the appeal if granted an extension of time to file the record of appeal within the timelines set by court. 3. The Application is opposed by 1st Respondent on the grounds that it will suffer prejudice if application is allowed. The 1st Respondent contended the dismissal order remains in force because the applicant failed to seek to set it aside, hence the appeal cannot be reinstated for hearing. Consequently The 1st respondent called for the dismissal of the application with costs. 4. The 1st Respondent filed written submissions dated 7th September 2026. The Appellant did not state that he filed the record of appeal after a date for the ruling had been set . The court has considered the rival affidavit evidence on record and the written submissions by the 1st Respondent. 5. 6. It is trite that an application for extension of time and the reinstatement of a suit / appeal for hearing is discretionary as stated by the Supreme Court in Nicholas Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) summed up the applicable Page 2 of 7

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considerations for grant of extension of time as follows:a) “Extension of time is not a right of a party. b) It is an equitable remedy that is only available to a deserving party at the discretion of the court; c) 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, d) is a consideration to be made on a case-to-case basis; e) 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; f) g) Whether the application has been brought without undue delay;” 7. The court takes cognizance of the well-settled principles governing applications for the reinstatement of an appeal, suit or application for hearing, as set out above as length or duration of time taken and reason for delay, prejudice likely to be occasioned to the Respondent and substance over technicality in disposing of the Application. 8. The 1st Respondent pointed that the Applicant failed to apply to set aside the dismissal order thereby rendering the application defective and incapable of being reinstated for hearing. 9. The Applicant has sought for substantive relief for the reinstatement of the appeal as well as an extension of time Page 3 of 7

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to file the record of appeal out of time in the event it was not filed contemporaneously with application or be deemed as duly filed upon payment of the requisite fees. The court takes note of provisions of Article 159 of Constitution of Kenya 2010 which provides that justice shall not be denied on account of procedural technicality. 10. The reliefs sought by the Applicant reveals an intention that the Applicant seeks to undo the consequences of the dismissal order thereby addressing the failure to explicitly request that the order be set aside. In Railway Corporation of Kenya v. Transport Licensing Appeal Tribunal & 5 Others (2014) eKLR it was stated that procedural lapses that do not go to the root of a matter, nor cause prejudice to a party, should not defeat justice. 11. It would amount to penalizing the Applicant by dismissing the Application for failure to specifically pray for setting aside the dismissal order. This omission is the mistake by the drafter of the motion thereby defeating the overriding objective of administering substantive justice to all (Section 1A, 1B, 3A of Civil Procedure Act 2010. being guided by the cases of David Otieno Alinyo v. Kenya Railways Corporation & another [2025] KELC, Kingori & another v. Muturi (2022) KELC. where it was restated that under section 3A of the civil procedure Act ,2010 the court can move Suo motto to review and set aside an exparte order to promote access to justice for all pursuant to article 48 of the constitution of Kenya ,2010. The defect in applicant's application is curable under section 3A of the civil procedure Act and article 159 of the constitution of Kenya ,2010. 12. Applying the principles above to this case the Applicant's appeal was deemed dismissed on 30.6.2026. The application for reinstatement was filed on 17.7.2026 Page 4 of 7

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.in the application the Applicant cited a delay in obtaining the proceedings from the magistrates' court as supported by the letter dated February 13th .2026 for noncompliance with the court's order issued on the 19.3.2026 and 12.5.2026. 13. The 1st Respondent averred those subsequent correspondences were annexed by applicant to demonstrate good faith and commitment to prosecute the Appeal, as no record of appeal had been filed. The Appellant filed the record of appeal after the date for ruling had been fixed. That notwithstanding, the cardinal principle remains that a party shall not be driven from the seat of justice without being heard on merits. This right is enshrined in Article 48, 50 and 159 of the Constitution of Kenya 2010 as well as Sections 1A & 1B of Civil Procedure Act 2010. 14. In the spirit of fairness and balancing the interests of the parties, it is prudent for the Appellant to be heard on merit rather than dismissing the appeal summarily, on procedural technicality. 15. Regarding the prejudice likely to be suffered by 1st Respondent, the Applicant explained the delay in filing the record of appeal in time was occasioned by delay in obtaining the proceedings from the magistrate’s court. Where the delay is not inordinate and sufficient cause has been given by the applicant for not filing the record of appeal within the stipulated timelines, any prejudice likely to be suffered can be compensated by throw away costs’ payable to 1st Respondent by Applicant .This is in contrast to Applicant being locked out of the seat of justice without being heard on the merit ,which might otherwise compel the applicant to pursue the matter further at the court of appeal, thereby unnecessarily prolonging time for disposal of the Appeal. Page 5 of 7

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16. Based on the material presented before the court by parties, the 1st respondent has not demonstrated that it will suffer irreparable prejudice that cannot be compensated by costs if the application is allowed. In the circumstances, I find the Application meritorious and therefore allow it on the following terms: i) The Appeal is reinstated for hearing and disposal on merit. ii) The Appellant to file and serve a record of Appeal upon the Respondent within 7 days from the date hereof. iii) The Applicant to pay throw away costs of Kshs 20,000/= to the 1st Respondent within 30 days from the date of this ruling. iv) In default of compliance with orders c &d above, the appeal shall stand dismissed without further reference to the court. v) Mention on the 29.10.2026 to confirm compliance and directions on disposal of the appeal. It is ordered accordingly. Dated, Signed and Delivered on the 28th day of September 2026 at Voi HON. J. A. ORWA JUDGE In the presence of: Mr Kwaro for the Applicant/Appellant Mr Letisiah - Court Assistant Page 6 of 7

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But absence of Respondents Page 7 of 7

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