https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10692

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **MISC APPLICATION NO. E122 OF 2024** **JOHN KIPSANG BUNDOTICH...................................APPELLANT /APPLICANT** **-VERSUS-** **LILIAN CHEPTOO SAWE............................................................RESPONDENT** **RULING** **BRIEF FACTS** 1. The Applicant moved this Court by a Notice of Motion dated 9th April,2023 and amended on 31st October,2025 brought under Article 159 of the Constitution of Kenya 2010, Sections 79G 75 and 95 of the Civil Procedure Act, Order 43 Rule 2 and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders:- 2. That the appellant/applicant be granted leave to file an appeal out of time from the ruling in Eldoret SCCOMM NO. E376 OF 2023 dated and delivered by Hon. Tabitha Mbugua on 8th March, 2023. 3. That the attached Draft Memorandum of Appeal be deemed as filed after the application is allowed and fees paid. 4. That costs of the application be provided for. **The applicant’s case;** 1. The application is supported by the affidavit of Counsel for the Applicant sworn on 9th April,2023 and amended on 31st October,2025.The Applicant deposes that judgment was delivered on 13th October,2023; that a ruling of review of the judgement was delivered on 8th March,2024,that the statutory period for filing an appeal lapsed before an appeal could be lodged; that the delay was occasioned by reasons beyond the Applicant's control; that the intended appeal raises arguable issues of law and fact; and that unless stay is granted, execution will proceed rendering the intended appeal nugatory. 2. The applicant further filed a supplementary affidavit dated 24th April,2026 and annexures thereon. The applicant thereafter filed submissions dated 23rd June,2026. 3. It was the applicant’s submission that an order for extension of time is purely discretionary upon the honourable court and relied on the case of **Edith Gichugu Koine vs Stephen Njagi Thoithi{2014}eKLR.** 4. The applicant contended that the ruling on review was delivered on 8th March,2024 thus the 30 days for filing of the appeal according to the timelines granted in Section 79G of the Civil Procedure Act lapsed on 8th April,2025 while the advocate in conduct of the matter was on maternity leave from 8th January,2024 to 9th April,2024 when immediately upon resuming work she filed the application herein. 5. It is therefore the applicant’s submissions that the application was filed without inordinate delay and relied on the case of **Simon vs Oira {2025} KEHC 7211(KLR)** where the Honourable Court found that 1 and ½ Months cannot be termed as inordinate delay. 6. The applicant submits that a draft memorandum of appeal was attached proving that the applicant has an arguable appeal and relied on the case of **Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others{2013} eKLR.** 7. The applicant concluded by submitting that the delay has been explained and that the mistakes of the advocate should not be visited upon an innocent litigant and urged the court to allow the application. **The respondent’s case**; 1. The Respondent opposed the application through a replying affidavit sworn on 9th March,2026 contending among other contention that the application is an afterthought, that the applicant has not provided evidence that she was on maternity leave, that the applicant is guilty of laches and should not benefit from the court’s intervention and prays that the application be dismissed. 2. The respondent urged the court to dismiss the application with costs. 3. That at the time of writing this ruling the respondent had not filed her submissions. 4. Directions were taken on 9th June,2026 to canvass the application by way of written submissions. Each party was given 14 days to file submissions. The applicant filed submissions dated 23rd June,2026 while the respondent did not file any submissions. 5. Having considered the Notice of Motion amended on 31st October,2025, the affidavits and annexures on record and the applicant’s submissions, The sole issue for determination is whether the Applicant has established sufficient cause to warrant extension of time for filing an appeal. **ANALYSIS;** 1. Section 79G of the Civil Procedure Act requires appeals from subordinate courts to the High Court to be filed within thirty (30) days from the date of the decree or order appealed against. The proviso empowers the Court to admit an appeal out of time where the appellant demonstrates good and sufficient cause for the failure to file the appeal within the prescribed period. 2. The discretion conferred upon the Court is wide but must be exercised judicially and upon settled principles. Extension of time is not available merely because it has been sought. An applicant must satisfactorily explain the entire period of delay. 3. The guiding principles were authoritatively set out by the **Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others,** where the Court held that extension of time is an equitable remedy available only to a deserving party. 4. The Court identified relevant considerations including the length of the delay, the reason for the delay, the degree of prejudice to the respondent, whether the application has been brought without undue delay, and, where appropriate, the prospects of the intended appeal. 5. Similarly, the **Court of Appeal in Leo Sila Mutiso v Rose Hellen Wangari Mwangi** held that the Court considers, among other factors, the length of delay, the explanation for the delay, the chances of the intended appeal succeeding and the prejudice likely to be occasioned to the respondent. 6. The same principles were reiterated in **Mwangi v Kenya Airways Ltd** where the Court emphasized that no single factor is decisive and each case depends upon its own peculiar circumstances. 7. The record shows that ruling on review was delivered on 8th of March,2024 while the present application was filed a day after the lapse of the statutory period. Although there was delay, I do not consider the same to be inordinate in the circumstances presented before this Court. 8. The Court has in numerous decisions excused even longer periods where satisfactory explanation has been offered. Time, by itself, is therefore not the determining factor. The critical inquiry is whether the delay has been satisfactorily explained. 9. The Court has considered the chronology presented by the Applicant. The explanation tendered by the Applicant is that the counsel in conduct of the matter was on maternity leave at the time the ruling was delivered and she resumed work a day after the expiry of the statutory period and proceed ed to file this application on 9th of April,2024. 10. This Court appreciates that mistakes occasionally occur in legal practice. While a litigant should not always escape the consequences of counsel's omission, the Court should equally be slow to shut out a litigant from the seat of justice where the explanation appears candid, plausible and made in good faith. 11. In the Court's view, the explanation is reasonable and has not been rebutted by evidence demonstrating that the delay was deliberate or intended to obstruct the course of justice. 12. The respondent has not demonstrated that the explanation is false or made in bad faith. 13. The explanation given has not been controverted through credible evidence. I therefore accept it as sufficient. 14. While this Court is not required at this stage to determine the merits of the intended appeal, it is sufficient if the Applicant demonstrates that the appeal is not frivolous. From the draft memorandum of appeal annexed to the application, the intended appeal raises questions touching on the trial court's evaluation of the evidence and application of the law. Those are not idle issues and deserve interrogation by the appellate court. 15. As regards prejudice, the respondent argues that litigation should come to an end. Indeed, finality is an important principle in administration of justice. 16. However, the respondent has not demonstrated any specific prejudice that cannot be adequately compensated through an award of costs. One the other hand, refusing leave would permanently extinguish the applicant’s statutory right to appeal. Therefore, the scales of justice generally tilt in favour of hearing the appeal on merit. 17. The Court is also guided by Article 50(1) and Article 159(2)(d) of the Constitution, which oblige courts to administer justice without undue regard to procedural technicalities while ensuring that substantive justice prevails. Although procedural timelines are important and ought generally to be complied with, the discretion conferred by Section 79G exists precisely to ensure that deserving litigants are not shut out where sufficient cause has been demonstrated. 18. The Constitution commands courts to administer justice without undue regard to procedural technicalities. Article 48 guarantees access to justice. Article 50 guarantees a fair hearing. Article 159(2)(d) obliges courts to administer substantive justice. 19. The Court is equally guided by Sections 1A and 1B of the Civil Procedure Act introducing the overriding objective. These provisions do not abolish procedural rules. Rather, they require courts to apply those rules in a manner that advances substantive justice. 20. The discretion under Section 79G exists precisely to avoid injustice in deserving cases. Having considered all the circumstances of this case, I am persuaded that the Applicant has satisfactorily explained the delay. 21. The intended appeal is arguable. No irreparable prejudice has been demonstrated by the Respondent. The interests of justice favour allowing the dispute to proceed to the appellate stage. **Disposition;** 1. Having weighed all the relevant considerations, I am satisfied that the Applicant has given a satisfactory explanation for the delay and has demonstrated sufficient cause to warrant the exercise of this Court's discretion in his favour. **Order;** 1. Accordingly, the Notice of Motion dated 9th April,2024 and amended on 31st October,2025 is hereby allowed on the following terms: 2. Leave is hereby granted to the Applicant to file and serve an appeal against the ruling of the subordinate court delivered on 8th March,2024 out of time. 3. The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date of this ruling. 4. The Record of Appeal shall thereafter be filed in accordance with the Civil Procedure Rules. 5. In default of compliance within the stipulated period, the leave hereby granted shall automatically lapse. 6. Costs of the application shall abide the outcome of the intended appeal. It is so ordered. **Delivered, Dated and Signed on This 10th Day of July, 2026 at Eldoret High Court** **………………………………** **J. M. CHIGITI (SC)** **JUDGE**