James Nyaituma Samusi v National Bank of Kenya Limited & 1 other

f. 2. The costs of this Application be in the cause. The grounds on the face of the application were that; 1. The Ruling was delivered on 8th December 2023 2. The delay in filing the Memorandum of Appeal was due to the misleading information and indolence of the Applicant's previous Advocate. 3. The Applicant has always been diligent in inquiring about the status of his case and was misled by his former Advocates. 4. The Applicant was only informed of the true status of the matter sometime in July 2024 after instructing the current Advocates on record. 5. The Applicant has a Meritorious Appeal with high chances of success and should be heard on merits. 6. The Applicant's immovable property, which is the ancestral land and their only home, is at risk of attachment and sale. 7. The Respondents will not suffer any undue prejudice if this Application is granted. 8. It is in the interest of justice that the orders sought herein be granted. Determination 3. I have considered the Application herein; 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. 4. Leave to file an appeal out of time is a discretionary matter, which discretion ought to be exercised judiciously. 5. 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; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19777/eng@2025-07-03 2

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6. e. Whether there will be any prejudice suffered 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 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 the application….” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19777/eng@2025-07-03 3

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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, where the Court of Appeal pronounced itself as such. 8. I am therefore tasked with determining whether the present application meets the requirements set out hereinabove. Length of Delay The Ruling in question was delivered on 8th December 2023. 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 twentyfirst 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. Considering the Christmas Holidays, the right of appeal against the said ruling lapsed on or on or about 29th January 2024 in the Ruling in question. The present application was filed on 6th August 2024 that is, around 7 months after the 29.1.24. The delay was thus inordinate, Reasons for delay 9. The Deponent deponed that he was aware that the ruling was delivered on 8th December 2023, and that he has been inquiring about the status of his case diligently and that came to know of the same sometime in July 2024 by which time the period for filing an appeal had already lapsed. He further stated that the failure to file an appeal within the prescribed time was occasioned by the confusion arising from the misleading information and indolence of his said Advocate and was not intended to delay justice. The applicant seems to be economical with the truth in this matter. In the sense that the Ruling was delivered on 8th December 2023 and surprisingly the appellant comes to seek leave after 7 months and claims that he has been following the status of the case and came to know the truth of the matter sometime in July 2024. Although mistakes of counsel should not be visited upon a litigant, litigants also have a duty to follow up on their cases diligently to know the position. The reasons given for the delay are not plausible. 10. On leave to appeal out of time, it is clear that the applicant delayed to file the intended appeal by 7 months as the Ruling was delivered on 23rd July 2024 and the application was filed on 6th March 2025. The applicant says that the delay was caused by the advocate who was in conduct of the matter who did not file an Appeal according to the wishes of his client and filed an application for review. However, the said advocate has not been named and no affidavit has been filed by the said advocate. In Rajesh Rughani v Fifty Investments Limited & another [2016] eKLR it was held follows; “In Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR this court stated that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation.” 11. Though the draft memorandum of appeal raises an arguable issue, there is no plausible ground established as to why the appeal was not filed within time. It is trite law that justice delayed is justice denied, and a decree holder is entitled to enjoy the fruits of her judgment. Therefore, the intended appeal is an afterthought meant to delay the execution of the judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19777/eng@2025-07-03 4

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12. 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 with costs to the respondents. DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3RD DAY OF JULY 2025 IN THE PRESENCE OF: T.A ODERA JUDGE 3.7.25 Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19777/eng@2025-07-03 5

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