Mary Uchi Nyiro v Boniface Okwero Mangeti & 1 other

of advocate shall not be effected without an order of the court or upon consent between the outgoing and incoming advocates. 5. The rationale underlying the Rule is that it is intended principally to protect advocates from being removed after judgment without addressing issues relating to their professional fees, while at the same time ensuring orderly conduct of proceedings. It is not designed to impede a litigant's constitutional right to legal representation. 6. The Applicant stated that she lost confidence in her previous advocates after discovering that despite her express instructions, payment of legal fees and repeated follow-up, no appeal had been filed. That explanation has not been seriously controverted. 7. In the present matter, no prejudice has been demonstrated that would arise from allowing the change of advocates. Consequently, the prayer seeking leave for KNW Law Advocates LLP to come on record is merited. ii.) Whether Time Should Be Extended 8. The jurisdiction of this Court to enlarge time is donated by Section 79G of the Civil Procedure Act which provides that an appeal from a subordinate court shall be filed within thirty days from the date of the decree or order appealed against, provided that an appeal may be admitted out of time if the appellant satisfies the court that he or she had good and sufficient cause for not filing the appeal within time. 9. The discretion conferred by Section 79G is judicial rather than arbitrary. It must be exercised on settled legal principles and in a manner that advances substantive justice while preserving the principle of finality in litigation. 10. The principles governing extension of time are firmly settled. In the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, the Court emphasized that extension of time is not a right but an equitable remedy available only to a deserving party who satisfactorily explains the delay. 11. The Court identified several relevant considerations including: a. the length of delay; b. the reason for the delay; c. the degree of prejudice likely to be suffered by the opposite party; d. whether the application has been brought without undue delay upon discovery of the default; and e. where appropriate, the public interest and the overall interests of justice. 12. Similar principles had earlier been articulated by the Court of Appeal in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, where the Court held that in exercising discretion to extend time, the court considers the length of delay, the explanation for the delay, the chances of the intended appeal succeeding and the degree of prejudice to the respondent. 13. Although the Court is not required to make definitive findings on the merits of the intended appeal, it must satisfy itself that the appeal is not frivolous or hopeless. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13166/eng@2026-07-28 2

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Whether The Delay Has Been Suficiently Explained 9. The Respondents argue that the delay has been inordinate and inexcusable. Reliance is placed on Habo Agencies Limited v Wilfred Odhiambo Musingo [2015] eKLR and Bi-Mach Engineers Ltd v James Kahoro Mwangi [2011] eKLR, where the Court declined to excuse litigants who had failed to demonstrate diligence in pursuing their matters. 10. This Court has carefully examined those authorities. They undoubtedly establish the important principle that a litigant cannot merely blame an advocate while remaining completely indifferent to the progress of litigation. Courts have consistently held that parties bear an obligation to remain vigilant in the conduct of their own cases. 11. However, those authorities are equally clear that every application must turn on its own peculiar facts. They do not establish an inflexible rule that every mistake by counsel must invariably be visited upon the client. 12. The distinguishing feature in the present application is that the Applicant has placed before the Court evidence demonstrating that she actively pursued her appeal. She explains that the advocate handling the matter became seriously ill, a fact supported by medical documentation. Thereafter she instructed her advocates to file the appeal, paid the requisite legal fees and continued making follow-up inquiries. She was repeatedly assured that the appeal had been filed only to subsequently discover that no appeal existed. 13. The Applicant's conduct therefore cannot be equated with indifference or inaction. it demonstrates reasonable diligence on her part coupled with professional default on the part of her former advocates. 14. The Court of Appeal has cautioned against punishing innocent litigants for mistakes committed by advocates. In Philip Chemwolo & Another v Augustine Kubende [1982-88] KAR 103, Apaloo JA memorably observed that: “ Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits." 9. In Belinda Murai & Others v Amos Wainaina [1979] eKLR, where Madan J.A. observed that a mistake is a mistake and ought not necessarily to shut a litigant from the seat of justice. In Savings and Loan (K) Ltd v Susan Wanjiru Muritu Nairobi HCCC No. 397 of 2002, the Court emphasized that although advocates' mistakes cannot always excuse non-compliance, courts should incline towards sustaining litigation where justice can still be done without causing irreparable prejudice. 10. The Court is equally mindful of the decision in Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR, where the Court of Appeal observed that extension of time exists to ensure that deserving litigants are not shut out merely because of procedural defaults where satisfactory explanation has been given. 11. I therefore find that the explanation tendered by the Applicant is plausible, credible and adequately supported by evidence. The delay has not arisen from indolence but from circumstances substantially attributable to professional default. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13166/eng@2026-07-28 3

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Whether The Intended Appeal Is Arguable 9. The Respondents contend that the intended appeal lacks merit. At this stage, however, the Court is not required to conduct a mini-appeal. 10. The applicable test is simply whether the intended appeal raises bona fide issues deserving judicial interrogation. As stated by the Court of Appeal in Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, an arguable appeal must not necessarily succeed, but one that raises at least a single bona fide point deserving consideration. 11. The draft Memorandum of Appeal raises several substantial questions. Among them is whether the trial court properly evaluated the documentary evidence, including the police abstract, whether relevant evidence was overlooked, and whether the dismissal of the suit was consistent with the trial court's own assessment of damages. Those are neither frivolous nor idle complaints. They disclose legitimate questions of law and fact that deserve interrogation by an appellate court. Prejudice 9. Litigation must come to an end and successful litigants are entitled to enjoy the fruits of their judgments. Nevertheless, the prejudice alleged by the Respondents is largely procedural. No irreversible step has been demonstrated that cannot adequately be compensated through an award of costs. 10. On the other hand, refusal to enlarge time would permanently extinguish the Applicant's statutory right of appeal. Such a consequence would be disproportionate where the delay has been satisfactorily explained. 11. Upon weighing the competing interests, I am persuaded that the balance tilts in favour of permitting the Applicant an opportunity to ventilate her appeal on its merits. 12. Having carefully considered the application, the affidavits, the submissions and the applicable law, I am satisfied that the Applicant has established good and sufficient cause within the meaning of Section 79G of the Civil Procedure Act. 13. Accordingly, the Notice of Motion dated 8th July 2026 succeeds and the Court makes the following orders: 14. i. Leave is hereby granted to the firm of KNW Law Advocates LLP to come on record for the Applicant in place of the previous advocates. ii. Time is hereby enlarged for the Applicant to lodge an appeal against the Judgment delivered on 11th May 2023 in Meru Small Claims Court Case No. E021 of 2023. iii. The draft Memorandum of Appeal annexed to the application and marked "MUN-5" shall be deemed as duly filed upon payment of the requisite court fees within seven (7) days from the date hereof. iv. The Record of Appeal shall thereafter be filed and served within thirty (30) days. v. The costs of this application shall abide the outcome of the intended appeal. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF JULY 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13166/eng@2026-07-28 4

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DK RONO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13166/eng@2026-07-28 5

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