Kimathi Stephen Muceke v Mombasa Tamasha Distributors Ltd & 1 other

instructions, and also the fact that he is not based in Mombasa. It was urged that the delay was not inordinate. Regarding prejudice to the respondent, the appellant urged that there would be none. 4. In response, the respondents' counsel, Hamilton Barasa, made a sworn deposition dated 1st July 2025, in which he urged that the application lacked merit. Counsel stated that the delay in filing the appeal was inordinate. He denied that there had been a Court Tracking System downtime and averred that the respondents were able to obtain a copy of the judgment. He deposed that the applicant received the judgment amount and costs of the suit, but that he failed to disclose the same in his application. He averred that the appeal does not raise triable issues. Counsel prayed for the dismissal of the application with costs. 5. The application was canvassed by way of written submissions. The applicant filed written submissions dated 11th November 2025. Those of the respondent are dated 16th December 2025. 6. I have considered the application, the responses thereto, as well as the submissions of the parties. The issue I must determine is whether leave to appeal out of time should issue. 7. In the case of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the Court of Appeal, while considering an application for extension of time to file a notice of appeal, stated as follows: “ … it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal, the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are: the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted.” 8. Although the length of delay was not too long, I am not convinced that a good reason has been given for the failure to file an appeal on time. The allegation that there was a Court Tracking System downtime over an extended period is, in my view, uncorroborated. 9. Regarding the merits of the appeal, it is doubtful, in my view, whether there are good grounds of appeal. The respondent has urged that it made an offer to the appellant, which was accepted by receipt and encashment of the cheque. The respondents urged that under the doctrine of accord and satisfaction, such action bound him and that he cannot make any further demand. On a prima facie basis, this is very persuasive argument, which creates a doubt in the mind of the court as to the merits of the intended appeal. 10. As was stated by the Supreme Court in the case Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR), extension of time is not a right of a party, but is a discretionary remedy. The burden lies on the applicant to show that it would be equitable to exercise the discretion in his favour. 11. Regarding prejudice, it is my view that extending time would be prejudicial to the respondent, as upon paying, it had a legitimate expectation that the matter was at an end. 12. The upshot of the foregoing is that I see no merit in the application dated 7th July 2025. The same is dismissed with costs. 13. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 3RD DAY OF MARCH 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3203/eng@2026-03-03 2

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GREGORY MUTAI JUDGE In the presence of: Mr. Barasa, holding brief for Mr. Anjarwalla, for the Respondent; Ms. Ambutsi, holding brief for Mr. Kibara, for the Applicant; and Mr. Hamisi - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3203/eng@2026-03-03 3

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