Chairman Bog Ikenye Secondary School v Tom Nyagwachi T/A Moany Supplies & General Merchants

3. d. The former board of management term expired around November and a new board was appointed on the 10th March 2024 hence lateness in bringing this application. e. The applicant is now ready to pursue the intended appeal to which there are high chances of success. f. The respondent shall not be prejudiced in anyway if the application herein is allowed. g. The application is highly merited and should be allowed as prayed. The respondents in their replying affidavit contend that the applicants have not advanced any reasons as to why they didn’t file the said appeal on time, judgement having been delivered on 13th December 2023 and the applicant was granted 30 days stay. They contended that the secretary of the board who is also the principal of the school was present at all times, knowing the progress of the suit since he was the sole defence witness and thus the applicant cannot claim not having the knowledge of the judgement. They contended that the applicant has not annexed anything to show that the timeline of the previous board of management expired and a new appointment was to be made. They prayed that in the event leave is granted, the appellant deposit the whole decretal amount with their advocate on record or in court. Applicant Submissions 4. They submitted that being an educational institution, the applicant has to seek authority from the full board of management, it is not a case where one unilaterally takes instructions on personal level. That at the time of delivery of judgement, there was no board of management in place as the previous board’s term had come to an end and the school was on a break for Christmas holidays. They averred that there was no communication and information given to the new board as the same also took long to be inaugurated. They contended that the respondent shall not be prejudiced in anyway in the event that the appeal is allowed. Respondent Submissions 5. They submitted that judgement was delivered in 13th December 2023 and the court granted the applicant 30 days stay of execution which period lapsed on or about the 13th January 2024. The notice of motion was brought 5 months later on 30/4/2024, which delay, they consider unreasonable. They contended that the applicant has not produced any evidence to show that the former board’s term expired and there are no minutes from the said board in relation to the handing over and taking over of the new board of management. They averred that there is nothing on record to show that the new applicant is the new chairperson. They held the view that the explanation given by the applicant is unsatisfactory and unconvincing. They prayed that in the event the court finds that there is an arguable appeal, the applicant deposits half the decretal sum with the respondents advocates and the remaining half be deposited in court before the applicant can be allowed to file the memorandum of appeal. They also prayed that the court find the application not merited. Issues for Determination 6. The issue arising for determination is: a. Whether the applicant should be granted leave to appeal out of time https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19749/eng@2025-07-03 2

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Analysis and Determination Whether the applicant should be granted leave to appeal out of time 7. 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 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." 8. 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.” 9. 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. 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 sufiered by the respondents if the extension was granted; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19749/eng@2025-07-03 3

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f. 10. whether the application had been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.” The applicant contends that at the time of delivery of judgement, there was no board of management in place as the previous board’s term had come to an end and the school was on a break for Christmas holidays. They averred that there was no communication and information given to the new board as the same also took long to be inaugurated. They contended that by the time of attending the full board meeting, time to file an appeal had elapsed. The applicant, however, failed to provide evidence to prove that indeed there was a change of management and to show the dates of the first meeting of the new board, and for that reason, The application was filed about 4 months and 17 days after the decision of the lower court. Order 50 Rule 4 of the civil procedure rules provides that time shall not run between 22d December and 13th January of the next year and I proceed to reproduce the same the same 4. When time does not run [Order 50, rule 4] Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act: Provided that this rule shall not apply to any application in respect of a temporary injunction. The appeal should have been filed by 6th February 2025. The delay in filing the application was thus for about 84 days. The reason for delay has not been explained to the satisfaction of the court. The said the delay is inordinate. I need not determine the other issues since leave has been denied. 11. I decline to grant leave to file appeal out of time. 12. It is so ordered. T.A ODERA JUDGE 3.7.25 DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3RD DAY OF JULY 2025 PLATFORM IN THE PRESENCE OF: Court Assistant -Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19749/eng@2025-07-03 4

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