James Wambua Mutuku v Explorer Parcel Handlers & 1 other

aggrieved by the orders, thereafter informed their advocate to lodge an appeal in the High Court. b. That the Plaintiff/applicant fully gave instructions to their advocate to lodge an appeal in the high court. c. That the Plaintiff/Applicant upon following up in the court they realized that their advocate has not lodged the appeal. d. That upon taking instructions from the Plaintiff/Applicant we realized that the time for appeal had run out. e. The delay in filing the appeal was not intentional but was caused by the previous advocates who failed to follow his instructions to file the appeal and became uncooperative. f. The Defendants/Respondents are likely to execute the orders and warrants of attachment herein at any time. g. That it is in the interests of justice that the Plaintiff/Applicant be allowed to appeal the orders and warrants of attachment of the Hon. Dorcas O. Mac'andere out of the prescribed time. h. The intended appeal is arguable and meritorious and will therefore be rendered nugatory if stay of execution is not granted. i. That the Respondents will not be prejudiced if the said leave is granted. j. That there has been no inordinate delay in bringing this application. Applicant Submissions 3. The applicants submitted that their failure to appeal in time was due to the inaction of the previous advocate. They relied in the case of Belinda Murai & others v Amos Wainaina (1979) eKLR, where the court held that the mistakes of a counsel should not be visited on the litigant. They contended that the execution of the decree will result in irreparable loss and render the intended appeal nugatory. If the respondents execute the warrants of attachment, it will cause undue hardship. They deponed that the appeal raises substantial issues, including whether the applicant was properly served before the warrants of attachment were issued. Further submitting that the respondents will not suffer any prejudice that cannot be compensated by costs if the stay is granted. Issues for Determination 4. In regard to the application and applicant submissions, the following issues arise for determination; a. Whether the applicant should be granted leave to appeal out of time b. Whether the applicant should be granted a stay of execution pending the hearing and determination of the intended appeal Analysis and Determination Whether the applicant should be granted leave to appeal out of time 5. Section 79G of the Civil Procedure Act provides that: “ Every Appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against, excluding from such period any https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19745/eng@2025-07-25 2

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time 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 satisfies the court that he had good and sufficient cause for not filing the appeal in time." 6. The power of the court to enlarge time for filing an appeal out of time is provided for under Section 95 of the Civil Procedure Act which states that: “ Where any period is fixed 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 fixed or granted may have expired.” This provision is further supported by Order 50 Rule 6 of the Civil Procedure Rules 2010, which provides that: “ Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 7. The principles governing the extension of time were outlined in the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others [2022] KESC 3 (KLR): “ 4. 8. The guiding principles in applications for extension of time were as follows; a. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court; b. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court; c. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis; d. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e. whether there would be any prejudice suffered by the respondents if the extension was granted; f. whether the application had been brought without undue delay; and g. whether in certain cases, like election petitions, public interest should be a consideration for extending time.” The applicant contends that he did not file an appeal in time because he was not aware that their previous advocate had failed to adhere to their instructions of filing the appeal in time. In the case Bi- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19745/eng@2025-07-25 3

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Mach Engineers Limited v James Kahoro Mwangi (2011) eKLR, the court reiterated the duty of an applicant to follow up on instructions given to an advocate and expressed itself as follows:The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. 9. The applicant was represented by counsel in the lower court but he also had a duty to follow up on his case which he failed to do. In any event the impugned orders are dated 12.9.21 and the application was filed on or about 10.7.24. This is a period of almost 3 years. This delay was inordinate by all standards. The delay has not been satisfactorily explained. The applicant is guilty of laches. He is thus not entitled to extension of time. 10. Since the prayer for leave out of time has failed, then I need not delve into the issue of stay of execution. The application is devoid of merit, and I proceed to dismiss it. T.A ODERA JUDGE 25.7.25 DELIVERED VIRTUALLY IN THE PRESENCE OF: Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19745/eng@2025-07-25 4

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