Mulwa v Mawili (Miscellaneous Application E304 of 2025) [2026] KEHC 5819 (KLR) (10 March 2026) (Ruling) Neutral citation: [2026] KEHC 5819 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA MISCELLANEOUS APPLICATION E304 OF 2025 G MUTAI, J MARCH 10, 2026 BETWEEN WELLINGTON MULINGE MULWA .................................................... APPLICANT AND EUGENE MUTINDA MAWILI .......................................................... RESPONDENT RULING 1. The application before the court is dated 29th September 2025. Vide the said application, the applicant seeks an extension of time within which to file an appeal, and that execution of the judgment delivered by the Hon Kalo, CM, on 15th August 2025 be stayed pending the hearing and determination of the appeal. 2. In the affidavit in support of the application, Mr Wellington Mulinge Mulwa averred that although the judgment was delivered on 25th August 2025, he didn’t file an appeal on time due to what he termed as an inadvertent mistake on the part of his previous counsel. The particulars of what the inadvertent mistake was weren’t given. The applicant averred that he has an arguable appeal with chances of success. In support of the said contention, he annexed a draft memorandum of appeal which has 10 grounds of appeal. The said draft memorandum of appeal contests the learned magistrate’s findings on liability and quantum and seeks to have the award either set aside, reviewed, or revised in favour of the appellant. 3. The application is opposed. The respondent filed a replying affidavit sworn on 13th October 2025, in which it was averred that the judgment was delivered on 15th August 2025, not on 25th August 2025. The deponent stated that the judgment was emailed to the applicant on 21st August 2025, which was within the time available for lodging an appeal. It was stated that the proposed appeal was not arguable and that it would be fair and just to dismiss the same with costs. The respondent also stated that no reasonable explanation for the delay was provided. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5819/eng@2026-03-10 1
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4. I have considered the application and the response thereto. I note that at the moment there is no appeal. The applicant seeks leave to file an appeal out of time. In my view, the appeal must be filed before the court can consider granting a stay pending appeal. In my view, there can be no stay pending appeal where an appeal has not been filed. To do otherwise would be to put the cart before the horse. That being the case, the only prayers that I can entertain at this point are prayers 2, 5, 6 and 7 of the notice of motion dated 29th September 2025. 5. Section 79 G 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.” 6. Should the court extend the time for filing an appeal? I must note that the decision whether to do so is an exercise of discretion. Discretion must be exercised on sound principles, not upon whimsy or caprice. 7. In Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the Court of Appeal, in considering an application for extension of time and leave to file the Notice of Appeal out of time, stated the following: “ … 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. The impugned decision was delivered on 15th August 2025. In my view, a 14-day delay is not inordinate. I have carefully perused the draft memorandum of appeal. The same raises triable issues regarding the court’s finding on liability and quantum. 9. Regarding the explanation for the delay, the applicant blames his previous advocate, whereas the exact failure on the part of counsel is not provided. I am, however, inclined to believe the said account, as threadbare as it is, on the ground that granting leave to appeal is consistent with the interest of justice. Thus, I give the applicant the benefit of the doubt. 10. The upshot of the foregoing is that the application succeeds in part. I order as follows: 11. a. I grant leave to the firm of O. A. Ochieng & Co. Advocates to come on record for the applicant; b. I grant the applicant leave to file an appeal out of time. The annexed draft memorandum of appeal is to be deemed as duly filed upon payment of the requisite court fees; c. The court fees are to be paid within 14 days of the date hereof; and d. The costs of the application shall be costs in the appeal. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5819/eng@2026-03-10 2
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DATED AND SIGNED AT MOMBASA, THIS 10TH DAY OF MARCH 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mr Ochieng, for the Applicant; Ms Otuya, for the Respondent; and Ms Bancy - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5819/eng@2026-03-10 3
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