Charles Maisiba Ombati v Ezekiel Nyaosi Maisiba & 1 other

3. d. The counsel on record did not receive a copy of the judgment on time he applied for a copy of judgment and proceedings on the 6th March 2023 and was furnished with a copy of the judgment on 29th March 2023. e. That Counsel on record had been informed that a notice was to be sent to him informing him of the date of judgement but the same was not sent to him. f. The applicant’s counsel only became aware of the judgement when he was called by the applicant herein who informed him that he had heard from the respondents that the judgement had been delivered. g. The applicant upon persuing the said judgement has now deemed it prudent and in the interest of persuing his fundamental rights to prefer an appeal. h. The time of filing has however lapsed and the applicant seeks an extension of time within which to file his appeal. i. He be allowed to appeal as he has sufiered ridicule and had his name tainted as a result of the actions of the respondent and failure to do so will lead to impearable loss and harm. The respodent filed a replying afidavit of Charles Maeri Amenya (the 2nd respodent) dated 12.6.23. He termed the appeal as vexacious and a waste of this court’s time and an exercise in futility. Also that the applicant seeks equity while he and his advocates delayed in filing the appeal and have ofierred mere excuses for the same which are not merited. Further that the judgment was delivered on 25.1.23 and the applicant moved the court on 19.4. 23 which was 3 months after the judgment; an indication of indolence. Also that litigation must come to an end and that no security of costs for progression of the intended appeal has been ofiered. Also that no loss will be sufiered as the applicant was reinstated to work in the year 2018. Analysis and Determination 4. I have considered the Application herein and the response. Section 79G of the Civil Procedure Act provides as follows: -Every appeal from a subordinate court to the High Court shall be filed 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 satisfies the court that he had good and sufficient cause for not filing the appeal in time. 5. Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court derived the following principles to be considered when exercising its discretion to extend time to file an appeal out of time: a. 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; b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c. Whether the court should exercise discretion to extend time, is a consideration to be made on a case-to-case basis; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19746/eng@2025-06-20 2

page 2 of 5

6. d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; e. Whether there will be any prejudice sufiered by the respondents if the extension is granted; f. Whether the application has been brought without undue delay; and g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. In the case of Thuita Mwangi v Kenya Airways Ltd. [2003] eKLR, the Court of Appeal faced with an application for extension of time to file a fresh Notice of Appeal and Record of Appeal, the Court held as follows: “ Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997) (unreported), the Court expressed itself thus: “It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted. “These, in general, are the things a judge exercising the discretion under rule 4 will take into account. We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives the single judge an unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in anyway. Again, as we have pointed out, we do not think the Court intended that the list of four items it set out in Mutiso’s case, ante, was ever meant or intended to be exhaustive. It is also clear that the third issue for consideration, namely, the chances of the appeal succeeding if the application is granted is merely stated as something for a “possible” consideration, not that it must be considered. This is understandable because the “chances of an appeal succeeding” is normally dealt with by this Court under the rubric of an “an arguable appeal” or “an appeal which is not frivolous” and the full Court normally considers that issue under rule 5(2) (b) of the rules when the question is whether or not there should be a stay of execution, an injunction and so on. The requirement for the consideration of whether an intended or proposed appeal has any chances of success appears to have its origins in the case Bhaichand Bhagwanji Shah v D Jamnadas & Co Ltd [1959] EA 838 where Sir Owen Corrie, Ag JA is recorded as saying at pg. 840 Letter I to pg 841 at Letter A: “…..It is thus essential in my view, that an applicant for an extension of time under rule 9 should support his application by a sufficient statement of the nature of the judgment and of his reasons for desiring to appeal against it to enable the Court to determine whether or not a refusal of the application would appear to cause an injustice. In the applicant’s affidavit of September 19 last no indication whatever https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19746/eng@2025-06-20 3

page 3 of 5

of the nature of the case is included and I hold that if that affidavit stood alone, not sufficient ground would have been shown for granting application….” 7. This was the holding in the cases of Charles Karanja Kiiru v Charles Githinji Muigwa [2017] eKLR; Omar Shurie v Marian Rashe Yafar [2020] eKLR; Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR by the Court of Appeal. 8. The issue for determination is whether the application meets the threshold for granting leave to appeal out of time as set out hereinabove. Length of Delay 9. The judgment sought to be appealed from was delivered on 25.1.2023 and the applicant moved this court on 19.4.23 in the instant application. The Application was thus filed about 3 months after the judgment. Reason for Delay 10. The applicant deponed that the delay was caused by the fact that he and his advocate were not aware of the judgment date and so it was delivered in their absence and he also applied for proceedings but received them on 6.3.25 and the judgment was supplied to them on 29.3.23. The respondent accused the applicant and his counsel of indolence. The applicant has not explained whether he was in court when the judgment date was set and when he applied for the proceedings and judgment. No payment receipt for the proceedings and a certificate of delay were annexed to his affidavit. It is clear that the applicant is economical with the truth on the reason for the delay. It is clear that the issue of filling of the intended appeal was an afterthought. 11. On whether the delay was inordinate, Section 79 of the Civil Procedure Act provides that a party aggrieved by a judgment or order of the court should move the appellate court within 30 days and yet the appellant filed the instant application 3 months after the judgment which means the delay was for 60 days. The delay was thus inordinate. 12. On whether the respondent will be prejudiced by grant of the orders sought. The lower court case was filed in 2017 and was concluded in 2023 about 6 years later. The respondent deponed that litigation must come to an end. Expeditious disposal of cases is now enshrined under Article 159 of the Constitution and justice delayed is justice denied. I find that the respondent will be prejudiced if the application is allowed. 13. On whether the appeal is arguable from the draft memorandum of appeal the applicant seeks to challenge the dismissal of his case by the lower court saying it was against the weight of evidence he adduced. The intended appeal is arguable. 14. On whether the court should exercise its discretion in favour of the applicant, it is trite law that he who seeks equity must come with clean hands, I have already found that the applicant was economical with the truth on the issue of delay. He is thus not entitled to equitable orders of this court. 15. The application is thus an afterthought and an abuse of the process of this court. I find no merit in it and I proceed to dismiss it with costs to the respondents. T.A ODERA JUDGE 20.6.25 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19746/eng@2025-06-20 4

page 4 of 5

Delivered in the presence of The applicant Ombati for Respondent Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19746/eng@2025-06-20 5

page 5 of 5