Momanyi v Nyaega & another (Civil Appeal E003 of 2024) [2025] KEHC 18445 (KLR) (20 November 2025) (Ruling) Neutral citation: [2025] KEHC 18445 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYAMIRA CIVIL APPEAL E003 OF 2024 TW CHERERE, J NOVEMBER 20, 2025 BETWEEN KENNEDY MOMANYI ........................................................................... APPLICANT AND EVANS NYAEGA ............................................................................ 1ST RESPONDENT PATRICK NYARANG’O .............................................................. 2ND RESPONDENT RULING Background 1. The Court is called upon to determine the Notice of Motion dated 24th March 2025, by which the Applicant seeks leave to file an appeal out of time from the judgment delivered on 06th February 2025 and the Respondents’ Preliminary Objection dated 20th May 2025. 2. The Preliminary Objection contends that the Applicant’s advocates are not properly on record, having allegedly come on record after judgment without leave as required by Order 9 Rule 9 of the Civil Procedure Rules. 3. The Applicant argues that he acted in person throughout the appeal prior to judgment, and therefore his advocate properly came on record under Order 9 Rule 7. 4. The parties filed detailed submissions, which the Court has carefully considered. Issues for Determination 5. I have considered the application and the PO in light of the submissions by both parties and the following issues arise for determination: 1. Whether the Preliminary Objection has merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18445/eng@2025-11-20 1
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2. Whether the applicant has satisfied the legal threshold for extension of time to file an appeal out of time. Analysis and Determination 1. Whether the Preliminary Objection has merit 6. A preliminary objection must raise a pure point of law capable of disposing of a matter, as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. The question whether counsel is properly on record is such a point of law and therefore the objection is properly taken. 7. The Respondents submit that because judgment had been delivered, the Applicant’s counsel could only come on record pursuant to Order 9 Rule 9, either with leave of court or with a filed consent from any outgoing advocate. They argue that since no leave was sought, the Notice of Appointment and the Motion dated 24th March 2025 are incompetent. 8. The Applicant submits that he acted in person throughout the appeal before judgment and only appointed counsel after judgment. He contends that because he had no advocate on record before judgment, Order 9 Rule 9 does not apply, and that counsel properly came on record under Order 9 Rule 7 by filing a Notice of Appointment. 9. The Court has reviewed the record. It is uncontested that the Applicant, the Respondent in the appeal, acted in person at all material times prior to delivery of the judgment on 06th February 2025. No pleadings, appearances, or submissions were filed through counsel before judgment. 10. Where a party has acted in person before judgment and thereafter appoints an advocate, the applicable provision is Order 9 Rule 7, which only requires the filing of a Notice of Appointment of Advocates. 11. The Court of Appeal in John Langat v Kipkemoi Terer & 2 Others [2013] eKLR made it clear that Order 9 Rule 9 applies only where a litigant was previously represented in the same matter and seeks to change advocates after judgment. 12. In Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi [2012] eKLR, the Court emphasized that Rule 9 is intended to regulate the transition between advocates, and does not apply where a party acted in person since there is no outgoing advocate. 13. The Applicant’s advocate properly came on record under Order 9 Rule 7 and compliance with Order 9 Rule 9 was not required. 14. The Preliminary Objection is therefore without merit and is dismissed. 2. Whether the applicant has satisfied the legal threshold for extension of time 15. Extension of time is a discretionary remedy guided by principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 (CA) and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (SC). 16. The Court considers the length of delay; the explanation for the delay; whether the intended appeal is arguable; and prejudice to the respondent. 17. Judgment was delivered on 06th February 2025, and this application was filed on 24th March 2025, a delay of approximately 46 days. The Applicant explains that although he was served with mention https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18445/eng@2025-11-20 2
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notices, he was unable to join the online link and was not notified of the date for delivery of judgment. He explains that he only learnt of the judgment upon service of the bill of costs and taxation notice. 18. Failure to notify a party of the delivery of judgment is a sufficient explanation for delay. (See Bi-Mach Engineers Ltd v James Kahoro Mwangi (CA)). The delay is not inordinate and is reasonably explained. 19. The intended appeal raises issues relating to service, participation, and procedural fairness which are not frivolous. The Respondents did not demonstrate prejudice that cannot be compensated by costs. 20. I therefore find that the Applicant has satisfied the requirements for extension of time. Disposition 21. From the foregoing analysis, I make the following orders 1. The Preliminary Objection dated 20th May 2025 is dismissed with costs. 2. The Applicant is hereby granted leave to file an appeal out of time. 3. The Notice of Appeal shall be filed and served within 3 days from today’s date. 4. Costs of the Notice of Motion shall abide the appeal. DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Applicant - Mr. Bosire for Aboki Begi & Co.Advocates For Respondents - Fredrick for Fredrick Ondigo & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18445/eng@2025-11-20 3
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