https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8193

Lusuru v Aluda (Civil Miscellaneous Application E002 of 2026) [2026] KEHC 8193 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8193 (KLR) Republic of Kenya In the High Court at Vihiga Civil Miscellaneous Application E002 of 2026 RN Nyakundi, J June 9, 2026 IN THE MATTER OF AN APPLICATION TO FILE & SERVE THE MEMORANDUM OF APPEAL OUT OF TIME AND IN THE MATTER OF THE INTENDED APPEAL AGAINST THE JUDGMENT OF HON J.A. AGONDA AGONDA (SPM) DELIVERED ON THE 28/1/2026 Between Aggrey Lusuru Applicant and Caroline Aluda Respondent Ruling 1.Before this Court is notice of motion dated 4th May 2026 expressed to be brought under Section 79G of the Civil Procedure Act Order 50 Rule 6 & Order 40(1) of the Civil Procedure Rules where the Applicant is seeking for the following orders:a.That the Applicant be granted leave to appeal the judgment delivered on the 28th January 202 in Vihiga MCSUCC Cause No. E032 of 2024b.That the Applicant be granted leave to file a memorandum of appeal and serve out of time.c.Any other order that this honorable Court deems fit to grant. 2.The application is based on the following grounds:a.That the judgment of the lower Court was delivered on 28th January 2026 in the absence of the Applicant.b.That counsel for the Applicant did not inform the Applicant of the said judgment on time because she was unable to reach the Applicant on phone.c.That counsel for the Applicant was able to reach the Applicant on the 9th March 2026 whereby she served the said judgment to the Applicant through WhatsApp after the Applicant informed her that he his phone had a problem and that is why the same could not go through.d.That the Applicant has an arguable appeal.e.That the Respondent will not suffer any prejudice since the appeal is on the mode of distribution of the estate of the deceased.f.That it will be in the interest of justice that the said application be allowed. 3.In support of the application is the annexed affidavit of Vivian A. Shibanda who deponed as follows:a.That I am advocate of the High Court of Kenya hence competent to swear this affidavit.b.That I am in conduct of this matter on behalf of the Applicant hence competent to swear this affidavit.c.That the judgment of the lower Court was delivered on the 28th January 2026 in the absence of the Applicant.d.That I was present when the judgment was delivered, however I did not inform the Applicant of the said judgment on time because she was unable to reach the Applicant on phone.e.That I was able to reach the Applicant on the 9th March 2026 whereby I served the said judgment to the Applicant through WhatsApp whereby the Applicant also informed me that his phone had a problem and that is why he could not be reached.f.That after the Applicant read the said judgment he was aggrieved about the same and instructed me to file an appeal, however the time within which to file an appeal had lapsed on 26th February 2026 and by fourteen (14) days.g.That the Applicant has an arguable appeal.h.That we have applied and paid for typed proceedings.i.That the Respondent will not suffer any prejudice since the appeal challenges the mode of distribution of the estate of the deceasedj.That it will be in the interest of justice that the said application be allowedk.That it is imperative that orders sought be granted for the interest of justice Decision 4.The Civil Procedure Act under Section 79G provides 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. 5.The Court do not condone delay in filing an appeal as a matter of right. The law provides a window for filing belated appeals which requires a formal application detailing sufficient cause for the delay. The Court looks at the reasonableness of the cause rather than the length of the delay. 6.The key decided cases and principles on the approach of filing on an appeal out of time as herein under demonstrates the liberal justice-oriented approach in exercising discretion to grant leave for an Applicant to file his/her appeal out of time. Thus: Length of the Delay: While no maximum time is set, the delay must be explained from the date of judgment to the date of filing the application. Reason for the Delay: A "plausible and satisfactory" explanation is required, such as failure to receive timely legal aid, lack of conviction records, or illness. Prospects of Success: The intended appeal should not be frivolous and must have arguable grounds. Prejudice: Whether the Respondent (usually the Republic) will suffer prejudice. Interests of Justice: The Court of Appeal emphasized that in criminal cases, a right of appeal should not be easily denied due to technicalities if a substantial injustice has occurred. 7.This is in so far as the ambit of the jurisprudential dicta in the realm of civil law is concerned but why do I refer to the metaphor of Siamese twins in both criminal and civil procedure law in so far as the factors of significance to persuade the Court to extend time? Let us have a look at the guiding principles in the landmark decisions notoriously referred to in every litigation landscape on enlargement of time. This is to draw the differentia minimum and maximum as to the interlocking principles in the two branches of law. In the case of Nicholas Salat Vs IEBC & 7 Others the Supreme Court made the following observations on the principles to be considered in determining an application on extension of time 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 suffered by the Respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 8.From the comparative jurisdiction in the case ofLong-john & Ors V.blakk & ORS (1998) SC the apex Court held that; "There can be no doubt that for an application for an extension of time within which an appellant may file his brief of argument out of time or, indeed, for an extension of the time prescribed by the rules of Court for taking certain procedural steps, to succeed, the Applicant must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in filing his brief or taking the steps in issue and thus justify the grant of the extension of time applied for, whatever decision a Court arrives at in such applications must entirely depend on the exercise of its discretionary jurisdiction, having regard to the general principles of law governing the exercise of discretionary powers by the Courts and guided by the consideration of doing justice to all the parties to the dispute". See also the case of Chief T.O.S. Benson V. Nigeria Agip Oil Co. Ltd. (1982) 5 SC 1. 9.In determining this application under Section 79G of the CPA, the Court may restore the proceedings only if a good reason is given from failing to file an appeal within time of 30 days that the Applicant has unrealistic prospect of success in the indeed appeal that the other parties to the proceedings would not be more prejudiced by granting the application than by the Applicant refusing it. 10.What I venture to think is the proper rule which this Court must follow is that there is nothing in the nature of such mistake, omission or blunders can exclude the constitutional provisions under Article 27, 47, 48 & 50 of the Constitution from being proper grounds for not allowing a litigant to file his/her appeal out of time. However, the matter shall so be treated by a Judge excising judicial discretion must depend upon the facts of each individual case. The overriding concern of any Court is eth interests of justice 11.In my considered view the Applicant has satisfied me on his application that the proceedings to have him file an appeal should be restored. As such he has 30 days to pursue the record from the trial Court so that he can prepare the record of appeal and have it shared with the Court so that the necessary protocols or direction shall follow the event as per the law on appeal sets out the guidelines. The costs of this application shall abide the appeal. It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026…………………………………..R. NYAKUNDIJUDGE