Jacinta Katiwa v Misheak Musembi Nthenge

4. She deponed that after receiving some recovery and clearance from her doctor, she immediately instructed counsel to file this Application for leave to appeal out of time. That, the trial court erred by concluding that no agreement existed for the further sum of Kshs 200,000/= despite clear documentary evidence, thus rendering a decision that she verily believes is erroneous in law and against the weight of the evidence. 5. She deponed that the appeal has high chances of success as per the Memorandum of Appeal exhibited as JK 4. That, the delay in filing the appeal was not deliberate or negligent but was caused by a serious and unforeseen medical emergency which justifies this court's indulgence under section 79G and section 95 of the civil Procedure Act. 6. She deponed that she is willing to comply with any conditions that the court may deem fit to impose for the fair administration of justice. The Response 7. The Application was opposed through the Respondent’s Replying Affidavit sworn on 16/07/2025 wherein he deponed that the Application is fatally defective, lacks merit, is an abuse of the court process and a delaying tactic to the logical conclusion of the matter. That, the Applicant had enough time to appeal against the judgment rendered on 17/04/2025. That the judgment clearly shows that the Respondent should refund to the Appellant the sum of kshs 200,000/= initially advanced, less kshs 23,000/= paid via MPESA. That, the amount payable is kshs 177,000/= as per the primary suit and not 415,000/= as appealed. 8. He deponed that from the foregoing, there was nothing to be appealed against because the trail court clearly demonstrated that the commercial bank rate is 16% and not 28% as claimed by the Applicant. He denied the contents of paragraph 3 of the supporting affidavit and deponed that the Applicant was well and healthy at the time of delivery of judgment. That, the Applicant was aware of the judgment and was present in court at the time of judgment but did not take any step to follow up the matter. 9. He deponed that the trial court demonstrated clearly that there was no agreement showing/ demonstrating that the Appellant advanced a further sum of Ksh 200,000/= to the Respondent and she cannot turn around and dispute the same. That, the court exercised its discretion and rendered a regular judgment without error. That, the Appellant failed to establish a prima facie case against the Respondent. 10. He deponed that the appeal has low chances of success because the bank rate of 16% cannot be turned to be 28% as claimed by the Appellant. Rejoinder 11. In rejoinder, the Applicant deponed that the Application is properly before this court, grounded in law and supported by credible medical evidence and documentary proof of the loans. That, documents SN-1 to SN-6 demonstrate both the medical incapacity that prevented timely filing and the existence of the two loan transactions. 12. She denied that the lower court's assessment exhausted the claim as her claim is for two separate advances totaling Kshs 400,000/= with agreed interest bringing the total to Kshs. 415,000/=. That, the fact that the trial court found in favour of only part of the claim is exactly the error she is seeking to challenge on appeal. That, the Mpesa payment of Kshs 23,000/= (SN-6) is not in dispute and is already acknowledged but does not negate the second loan transaction evidenced in SN-5 which the trial court erred in disregarding. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4328/eng@2026-02-20 2

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13. She denied that that the issue of interest was settled for purposes of denying leave. That, the applicable interest rate is a question of contractual construction and/or law and is a valid ground of appeal. That, it is precisely the kind of arguable issue that justifies leave to appeal out of time. That, the agreements (SN-4 & 5) and the arguments in the draft memorandum show that the matter is properly arguable on appeal. 14. She deponed that the mere fact of being physically present at court on some occasion as asserted by the respondent did not demonstrate mental or medical capacity to take lega1 steps immediately after judgment. That, many stroke survivors attend medical appointments intermittently yet remain substantially impaired in decision-making and mobility. She denied the Respondent's attempt to rely on the post-dating of some documents to show that she was healthy. That, the material fact is that an MRI report showing changes consistent with cerebrovascular disease was issued on 11/03/ 2025 (SN-1), which was before the judgment of 17/04/2025. That, the audiology and neurology followups were part of continuing investigations and rehabilitation and do not negate the earlier MRI and the existence of the stroke event. 15. She denied that she willfully failed to act. She acknowledged that she was made aware of the judgment at or about the time it was delivered but deponed that, as set out above and evidence by medical records, she lacked the requisite capacity to pursue the appeals process. That, once she regained sufficient capacity and had obtained medical and legal advice, she acted promptly and without unreasonable delay. 16. She denied that she failed to discharge her evidential burden at trial and deponed that she availed the documentary evidence (SN-4, 5 & 6) and oral testimony in support. That, if the trial court misapprehended or failed to give adequate weight to the evidence, then that is an error which ought to be ventilated on appeal. That, leave to appeal out of time is granted where there is sufficient cause and an arguable appeal and the Court is not required at this stage to determine the evidential disputes. That, the appeal raises real issues inter alia, the existence and effect of two written loan agreements, the correct interest rate and whether the evidence was properly weighed. 17. She acknowledged the general principle that equity aids the vigilant but deponed that equity also takes into account circumstances beyond a litigant’s control and that her serious medical condition constituted such circumstances. That, the Respondent's Replying Affidavit raises matters of fact and law which are disputed and which go to the merits of the intended appeal. That, these issues will be properly resolved on appeal. 18. The Application was canvassed through written submissions. The Applicant’s Submissions 19. The applicant relied on section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules for the submission that the court is empowered to enlarge time where sufficient cause is shown. Reliance was placed on Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231 where the Court of Appeal laid down the guiding principles as follows; “ It is now well settled that the decision whether or not to extend 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4328/eng@2026-02-20 3

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appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.” 20. She further relied on Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR where the Supreme Court emphasized that extension of time is not a right but an equitable remedy to be granted at the court’s discretion upon a demonstration of good cause. 21. It was submitted that the Application was filed after a period of about two months and one week after delivery of judgment. That, according to decisions from court, longer delays are excusable if explained. Reliance was placed on Mwangi -vs- Kenya Airways Ltd (2003) KLR where a delay of seven months was excused on sufficient cause being shown. It was contended that the delay herein is not inordinate. 22. It was submitted that the reason for the delay was illness which incapacitated the Applicant and prevented her from taking prompt action. That, although the illness had been disputed by the Respondent, the Court must take judicial notice that serious neurological illnesses may only be confirmed by specialist investigations, sometimes conducted weeks after the onset of symptoms. Reliance was placed on Nicholas Kiptoo Arap Korir Salat (supra) for the submission that illness has been consistently accepted as a valid explanation for delay. 23. It was submitted that the intended appeal raises serious and arguable points of law and fact which go to the root of the judgment and warrant appellate interrogation. Reliance was placed on Stanley Kang’ethe Kinyanjui -vs- Tony Ketter & 5 Others [2013] eKLR for the submission that an Applicant need not demonstrate a likelihood of success but only an arguable appeal. 24. It was submitted that the Respondent will not suffer any prejudice that cannot be compensated by costs if leave is granted. Conversely, it was submitted that, if leave is denied, the Appellant will be permanently shut out from pursuing her right of appeal, thus occasioning grave injustice. The Respondent’s Submissions 25. It was acknowledged that this court has jurisdiction and discretion to enlarge time or refuse to enlarge time and reliance was placed on Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi (supra). 26. With regard to the length of delay, it was submitted that the Application was filed more than two months after delivery of judgment and the same is inordinate as there is no justifiable reason for the delay. Reliance was placed on Andrew Kiplagat Chemago -vs- Paul Kipkorir Kibet (2018) eKLR where the Court of Appeal stated that; “ The law does not set out minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for the delay is the key that unlocks the courts flow of discretionary favor.” 27. It was contended that the reason of sickness was not supported by medical reports and medical notes to show that the Applicant was in hospital hence the claim of being sick has not been substantially proved. It was contended that counsel for the Applicant could have easily filed a notice of appeal without any effort if indeed the Applicant was indisposed. 28. It was submitted that the issues forming the substratum of the appeal are legal arguments emanating from pleadings and submissions before the trial court hence no new grounds or issues were required https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4328/eng@2026-02-20 4

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from the Applicant to enable her counsel to file the appeal on time. Reliance was placed on Machira T/ A Machira & Co. Advocates -vs- East African Standard (No. 2) (2002) KLR 63 where the court stated; “ To be obsessed with the protection of an appellant or intending Appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other party, contrary to sound principle for the exercise of judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by way of applications for stay of further proceedings or executions, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.” 29. It was submitted that the Memorandum of Appeal raises no triable issues as the main ground raised therein is that the trial court failed to find that there was a second loan of kshs 200,000/= advanced. That the Applicant has not adduced any agreement in respect of this claim and is relying on the agreement dated 31/03/2022 which is ambiguous and was deemed as extremely exorbitant by the trial court. 30. It was submitted that the Applicant will not suffer any prejudice as the Respondent is willing to satisfy the amount awarded by the trial court. 31. As for costs, reference was made to section 27 of the Civil Procedure Act for the submission that they should follow the event. 32. I have considered the application, the rival Affidavits and submissions. It is my view that the issue for determination is whether the Application is merited; Analysis & Determination 33. 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 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. 34. The proviso implies that an intended appeal should be in place or be filed together with the application seeking leave for extension of time to file it. This view is buttressed by Mugo & Others –vs- Wanjiru & Anor [1970] EA 482 where the court stated as follows:“ Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4328/eng@2026-02-20 5

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or only allowing one on terms as to costs. But it does not mean that such an application must be refused.” 35. In this case the Applicant has attached a draft memorandum of appeal . It qualifies as an intended appeal for purposes of guiding the court on whether to the grant the orders sought. 36. The principles for application in determining such an application are settled. See Leo Sila Mutiso –vsRose Hellen Wangari Mwangi (supra 37. The judgment was delivered on 17/04/2025 and this application was filed on 20/06/2025, approximately 63 days later. The law requires appeals from subordinate Courts to the High Court to be filed within 30 days from the date of the decree or order appealed against. After lapse of the statutory period, the delay in this matter is 33 days. 38. The Applicant explained that the delay was caused by medical incapacitation and she has exhibited medical records although some are not legible. That, based on the findings and clinical presentation, the patient was diagnosed with cerebrovascular accident (stroke) and had been under medical supervision and neurological care since the diagnosis. That, the condition has significantly impacted her functional and cognitive capacity, resulting in limitations that affected her ability to engage in normal daily tasks. 39. It is noteworthy that the medical examination was done about a month before delivery of judgment and in light of the Applicant’s impaired functional and cognitive capacity, she may not have been in a position to comprehend the judgment and take action. The Respondent argued that the Applicants counsel could have easily filed a notice of appeal but it is trite that Advocates do not act without instructions from their clients. Consequently, I am of the view that the delay of two months, has been explained satisfactorily. 40. I have perused the Memorandum of Appeal in light of the rival averments by each party and I am of the view that there are triable issues which warrant to be canvassed on appeal and the Respondent will have an opportunity to oppose the appeal and any inconvenience caused can always be taken care of by award of costs 41. In the circumstances the application has merit and the same is allowed. The costs of this application will abide the appeal. 42. Orders accordingly DATED, SIGNED AND DELIVERED THIS 20TH FEBRUARY 2026 MUMBUA T MATHEKA JUDGE CA DANIEL Mr. Kasyoka for Applicant Ms. Okinyi for Respondent Ruling Misc. Application E048 of 2026 Page 2 of 2 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4328/eng@2026-02-20 6

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