https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7490

Edis Sacco v Cherotich (Miscellaneous Civil Application E001 of 2025) [2026] KEHC 7490 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7490 (KLR) Republic of Kenya In the High Court at Bomet Miscellaneous Civil Application E001 of 2025 JK Ng'arng'ar, J June 2, 2026 Between Edis Sacco Applicant and Betty Cherotich Respondent Ruling 1.The Applicant filed a Notice of Motion Application dated 6th January 2025 seeking the following orders: -i.That the Applicant herein be granted leave to file an appeal out of time against the Judgement in Bomet P.M Civil Case Number E44 of 2021 (Edis Sacco vs Betty Cherotich Langat).ii.That in the alternative to (I) above, this Honourable Court be pleased to enlarge time for filing an Appeal against Judgement in Bomet P.M Civil Case Number E44 of 2021 (Edis Sacco vs Betty Cherotich Langat).iii.That the draft Memorandum of Appeal be deemed as properly filed upon payment of the requisite fees.iv.That this Honourable court be pleased to grant any other order it may deem fit to grant. 2.The Application was brought under Order 50 Rule 50 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act. The Application was based on the grounds on the face of the Application and further by the annexed Supporting Affidavit of David Langat sworn on 6th January 2025. The Applicant’s case. 3.The Applicant stated that Judgment in Judgement in Bomet P.M Civil Case Number E44 of 2021 (Edis Sacco vs Betty Cherotich Langat) was delivered on 20th August 2024 and an appeal out to have been filed by 28th September 2024. That the Applicant was a company and it was necessary for the company to have a meeting to discuss the Judgment and decide whether or not to appeal it. The Applicant further stated that this bureaucracy led to the delay in filing the Appeal. 4.It was the Applicant’s case that when it finally decided to appeal, its advocate, J. Maritim was involved in a shooting incident where she sustained a serious injury. That the failure to appeal within time was not deliberate. It was the Applicant’s further case that it had a good appeal and it ought to be given a chance to be heard and determined. 5.Through its written submissions dated 1st April 2026, the Applicant submitted that delay in filing the Appeal was not deliberate. That the leave to file the Appeal out of time will not prejudice the Respondent. It relied on Patel vs E.A Cargo Handling Services Ltd EA 75. The Applicant further submitted that section 79G of the Civil Procedure Act provided for extension of time with good reasons. Response 6.The Respondent filed Replying and Supplementary Affidavits both dated 2nd October 2025 and stated that the Application had been brought after an inordinate delay. That litigation belonged to a client and not an advocate and that the Applicant could not rely on the advocate’s conduct to excuse the inordinate delay. That the delay was occasioned by the Applicant. 7.It was the Respondent’s case that a party intending to challenge a Judgement was required to file a Notice of Appeal within the prescribed time. That there were similar Applications in the trial court that sought the same reliefs as the present Application. It was the Respondent’s further case that litigation had to come to an end. 8.The Respondent stated that the Applicant did not produce any documents to support its reason for the delay. That there were no Minutes from the Applicant and further there were no medical report or documents attached. That the delay was nearly 5 months. The Respondent further stated that he had been subjected to protracted litigation since the year 2021 and had incurred significant legal costs and personal hardship. That reopening the matter would cause him further prejudice, expense and anxiety. 9.It was the Respondent’s case that the Applicant had settled costs in the trial court thereby rendering the present Application untenable and an abuse of the court process. That the Applicant did not have an arguable appeal. 10.Through her written submissions dated 7th April 2026, the Respondent submitted that equity aided the vigilant and not the indolent. That throughout the proceedings, the Applicant had engaged in delay. The Respondent further submitted that the Judgement was delivered on 28th August 2024 and the statutory time for appealing lapsed on 28th September 2024. That the present Application was filed four months later being 6th January 2025. 11.It was the Respondent’s submission that the Applicant could not hide behind its own internal disorganization to defeat statutory timelines. That the explanation that the Applicant’s advocate was incapacitated was unsupported by documentation. It relied on Gaciani & 11 others v Kimanga & another (Application E004 of 2023) [2023] KESC 23 (KLR). It was the Respondent’s further submission that she would suffer prejudice if the leave to appeal out of time is granted. 12.I have gone through and considered the Notice of Motion Application dated 6th January 2025, the Respondent’s Replying and Supplementary Affidavits both dated 2nd October 2025, the Applicant’s written submissions dated 1st April 2026 and the Respondent’s written submissions dated 7th April 2026. The sole issue for my determination was whether the Applicant should be granted leave to file its Appeal out of time. 13.This court is clothed with the discretion to decide whether or not to grant leave to file an appeal out of time. Such discretion ought to be exercised judiciously and within the principles of the law. The principles were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar [2020] KECA 492 (KLR) 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 appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 14.Similarly, the Court of Appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] KECA 485 (KLR) held: -“………..Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See Fakir Mohamed V Joseph Mugambi & 2 others, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.” 15.The importance of giving a sufficient reason for the extension of time to appeal was discussed in the Court of Appeal case of Susan Ogutu Oloo & 2 others v Doris Odindo Omolo [2019] KECA 966 (KLR) where it was held: -“In an application for extension of time, the single Judge has discretion. I am aware that the discretion I have is to be exercised judiciously and not whimsically or capriciously. The guiding principles on the issue of extension of time was laid out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. IEBC (2014) eKLR SUP. CT. Application No. 16 of 2014.The Supreme Court aptly stated extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”. 16.The Applicant stated that the reason for the delay in filing its Appeal was that it had to undergo company procedure of having a meeting, discussing the trial court Judgement, engaging their advocate for advice on the way forward and finally deciding on whether or not to do so. The Applicant also stated that the delay was also caused by a shooting incident in which its advocate was involved in and injured. 17.I have also considered the Respondent’s assertion that the Applicant’s reason for delay was unmerited. On the shooting incident, I agree with the Respondent that the claim was unsubstantiated as the Applicant failed to buttress it with medical evidence. The claim is therefore dismissed. However, on the issue of the red tape involved in making a decision within the Applicant, I am inclined to accept this reason as sufficient for the delay. 18.On the issue of the Appeal being arguable, I have perused the draft Memorandum of Appeal and I find that it was arguable as it raised issues that required the court’s determination. In the case of Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia [2021] KECA 1012 (KLR) the Court of Appeal held: -“As stated earlier, an arguable appeal is one that is not frivolous but raises a bona fide issue deserving determination by a Court and a single bona fide issue would suffice”. 19.The final ground that the court considers in such an Application is the prejudice that the Respondent would suffer if leave to file the Appeal out of time was granted. In the case of Ngwambu Ivita Vs. Akton Mutua Kyumbu (1984) KLR 441, the Court of Appeal held: -“The Defendant must however satisfy the court that he will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution.” 20.The Respondent stated that he would be prejudiced if the Applicant was allowed to file his appeal out of time. Her prejudice was that the Applicant was denying her the fruits of her Judgement and that she had been subjected to long and an expensive process of litigation. This in my view is not a sufficient reason to deny the Applicant an opportunity to ventilate its case on Appeal. It is my finding that the Respondent has not shown the prejudice she would suffer if the leave to file the Appeal out of time was granted. 21.This court’s position is that a party has a right to appeal and it would take extra ordinary circumstances to deny a party such a right. In the final analysis, the Applicant has satisfied the conditions precedent for the grant of leave to file the Appeal out of time. 22.In the end and in the best interests of justice, I make the following orders: -i.The Applicant be and is hereby granted leave to file and serve its Appeal out of time.ii.The Applicant shall have 30 days to file its Record of Appeal. Failure to abide by this timeline means the leave shall be vacated.iii.Each party to bear their own costs. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 2ND DAY OF JUNE, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGERuling delivered in the presence of:Abigael for Leteipa for the RespondentN/A for the ApplicantSiele/Susan (Court Assistants)