https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8059

Waswa v Nyongesa (Civil Miscellaneous Application 98 of 2018) [2026] KEHC 8059 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 8059 (KLR) Republic of Kenya In the High Court at Kakamega Civil Miscellaneous Application 98 of 2018 S Mbungi, J June 8, 2026 Between Ben Waswa Applicant and Andrew Wafula Nyongesa Respondent Ruling 1.This ruling relates to the Applicant’s Notice of Motion dated 9th December 2015 seeking leave of this Court to file an appeal out of time against the decision of the Rent Restriction Tribunal at Kakamega. 2.The application is supported by an affidavit sworn by the Applicant and is opposed by the Respondent through a Replying Affidavit. 3.The Applicant contends that the intended appeal raises serious issues arising from proceedings before the Rent Restriction Tribunal, including alleged procedural irregularities, ex parte orders, defective affidavits of service, and questions of jurisdiction. The Respondent opposes the application as an abuse of process and an attempt to delay execution. Issues for Determination 4.The Court identifies the following issues for determination:i.Whether the Applicant has given sufficient cause for extension of time;ii.Whether the intended appeal is arguable;iii.Whether the Respondent will suffer prejudice; andiv.Whether the Court should exercise its discretion in the interests of justice. i. Whether the Applicant Has Given Sufficient Cause for Extension of Time 5.The power to extend time is discretionary. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court held that extension of time is not a right but an equitable remedy, and the applicant must lay a satisfactory basis for the delay. 6.Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal set out guiding principles including length of delay, reason for delay, and chances of success. 7.In the present case, the Applicant has not provided a detailed chronology explaining the delay. However, the Court notes that the dispute arises from tribunal proceedings where procedural execution and adoption issues are contested. 8.While the explanation is not entirely satisfactory, the Court is guided by the principle that justice should not be sacrificed due to procedural technicalities as stated in Article 159(2)(d) of the Constitution. 4. Whether the Intended Appeal is Arguable 9.At this stage, the Court is not required to determine the merits of the appeal but only whether it raises arguable points. 10.In Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, the Court of Appeal held that an arguable appeal is not one that must succeed but one that raises at least a single bona fide issue deserving consideration. 11.The Applicant raises the following issues: Whether execution proceeded before lawful adoption of tribunal orders; Whether there were defects in affidavits of service; Whether proceedings were res judicata contrary to Section 7 of the Civil Procedure Act; Whether the tribunal process violated statutory procedure under the Rent Restriction Act. 12.The Court is also guided by Mbogo v Shah [1968] EA 93, which emphasizes that appellate intervention is warranted where discretion is exercised on wrong principles. 13.The Court finds that these issues are not frivolous and warrant appellate interrogation. ii. Whether the Respondent Will Suffer Prejudice 14.The Respondent argues that the application is intended to delay eviction and prolong litigation, noting that the Applicant has remained in occupation of the premises without payment of rent. 15.In Githunguri v Jimba Credit Corporation Ltd [1988] KLR 838, the Court held that delay and prejudice must be weighed against the right to be heard. 16.Similarly, in Abdirahman Abdi v Safi Petroleum Products Ltd & 6 Others [2011] eKLR, the Court emphasized that prejudice must be real and not speculative. 17.In this case, the prejudice alleged is primarily financial and can be compensated by costs. The Court is not persuaded that the Respondent will suffer irreparable prejudice if leave is granted. iii. Whether the Court Should Exercise Its Discretion in the Interests of Justice 18.The discretion to extend time must be exercised to serve substantive justice.In Mwangi v Kenya Airways Ltd [2003] KLR 486, the Court held that the overriding objective is to do justice to the parties. 19.Further, in Philomena Njeri Mbugua v African Banking Corporation Ltd [2005] eKLR, the Court stated that the right of appeal should not be lightly denied where arguable issues exist. 20.The Court is also guided by Article 48 and Article 50 of the Constitution, guaranteeing access to justice and the right to a fair hearing. 21.Balancing the competing interests, the Court finds that although litigation must come to an end, the right to appeal where arguable issues exist should not be curtailed. 22.Accordingly, the Court makes the following orders:a.The application dated 9th December 2015 is hereby allowed.b.The Applicant is granted leave to file an appeal out of time against the decision of the Rent Restriction Tribunal at Kakamega.c.The Memorandum of Appeal shall be filed within fourteen (14) days from the date hereof.d.The Record of Appeal shall be filed within sixty (60) days thereafter.e.Costs of this application shall abide the outcome of the intended appeal.f.Mention 14.10.2026 for compliance.g.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaMs. Masengeli for the Respondent present online.Applicant absent.