Serah Gacheri Mworia v Geoffrey Mutuma Mworia & 1 other

5. It is stated that the trial court did adjourn the delivery of the judgment and on each occasion the parties would be given another date in court. That the application is frivolous, full of falsehoods that amount to an attack on the integrity, impartiality and character of the judiciary officer. That the applicant has failed to annex a draft memorandum of appeal and as such the court cannot determine whether the appeal is merited or not. That the applicant has not given evidence to prove the delay of the file in the judicial officers’ chambers. 6. Parties filed submissions which I will not rehash. I will refer to them where necessary. 7. As correctly submitted by both parties, the process of the court to extend time to file an appeal as set out under section 79G of the Civil Procedure Act which states 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.” 8. 9. The Supreme Court of Kenya, in the case of County Executive of Kisumu vs County Government of Kisumu & others [2017] eKLR while relying on its decision in the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others Application No. 16 of 2014 (supra) reiterated the considerations to be made in such an application to be as follows: 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 the 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; e. Whether there will be any prejudice sufiered 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.” Therefore, the discretion to extend time must be exercised judiciously. The principles for consideration were set out by the Court of Appeal in Omar Shurie vs Marian Rashe Yafar (2021) eKLR where it was held: “ It is now well 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7739/eng@2026-06-02 2

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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.” 10. It is agreed that the judgment was not delivered on the initial date scheduled. The applicant’s gripe with the trial court is that the judgment was delivered without notice to them and that she only got a copy of the judgment after making several visits to the court. 11. I have looked at the impugned judgment. It is said to have been delivered on 20/12/2024. The Coram shows that the petitioner was present. The other parties were absent. 12. The applicant who was the petitioner claims she was unaware of the delivery and that the judgment was sent online on 26/05/2025. She filed this application a day later. 13. In my view, the grounds adduced appear genuine. There is no evidence that fresh notices were issued to the parties. If indeed the judgment was delivered on 20/12/2024, as alleged, then why was the same only uploaded on 26/05/2025? 14. Even though the applicant has not exhibited a draft memorandum of appeal, that alone is not sufficient ground to deny her the right to appeal to this court. 15. After considering the matter, I am inclined to allow the application on the following terms: a. The applicant is granted leave to file appeal out of time. b. The Memorandum of Appeal to be filed and served within the next 14 days, failing which the leave shall be deemed to have lapsed. c. Costs of the application shall abide by the outcome of the intended appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE 2026. ………………………….. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7739/eng@2026-06-02 3

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