https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4568

Kirangi v Kenya Power & Lighting Company PLC (Environment and Land Civil Miscellaneous Application E036 of 2025) [2026] KEELC 4568 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4568 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Civil Miscellaneous Application E036 of 2025 EC Cherono, J July 16, 2026 Between Elijah Mwaniki Kirangi Applicant and Kenya Power & Lighting Company Plc Respondent Ruling 1.Before this Court is the Notice of Motion dated 3rd December 2025 brought under Sections 79G and 95 of the Civil Procedure Act wherein the Applicant seeks leave to file an appeal out of time against the judgment of Hon. S.K. Ngii (Principal Magistrate) delivered on 16th October 2025 together with an order deeming the annexed Memorandum of Appeal as duly filed and served. 2.The application is premised on the grounds appearing on its face and supported by the Applicant's affidavit sworn on 3rd December 2025. The Applicant deposes that following delivery of judgment on 16th October 2025, he applied for certified copies of the proceedings and judgment on 29th October 2025 with a view to appreciating the reasoning of the trial court before deciding whether to appeal. He contends that the proceedings and judgment were not supplied in good time and by the time they were availed, the statutory period for filing an appeal had lapsed. He avers that the resultant delay was only about seven days, was neither deliberate nor inordinate, and that the Respondent will not suffer any prejudice if time is enlarged. 3.The application is opposed through the Replying Affidavit of Nicole Kihara sworn on 21st January 2026. The Respondent contends that the application is incompetent, an afterthought and an abuse of the court process. It is further deposed that the Applicant has failed to demonstrate sufficient cause for extension of time, that litigation ought to come to an end and that reopening the matter would occasion prejudice to the Respondent. 4.The parties agreed to dispose of the application by way of written submissions. The Applicant relied on Peter Muriungi & Another v Trustees, Registered Catholic Parish D.O.D Laare (2020) KLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, urging the Court to exercise its discretion in his favour. The Respondent relied on Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997, Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra), Machira t/a Machira & Co. Advocates v East African Standard (No.2) [2002] KLR 63 and African Merchant Assurance Co. Ltd v Nyamai Kea & Another [2020] eKLR. 5.I have considered the application, the affidavits on record, the rival submissions and the applicable law. The sole issue falling for determination is whether the Applicant has established sufficient cause to warrant extension of time for filing an appeal. 6.Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High 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 had good and sufficient cause for not filing the appeal in time. Section 95 of the Civil Procedure Act equally grants the Court power to enlarge time where sufficient cause is shown. 6.The principles governing extension of time are now settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), the Court held that in exercising its discretion, the Court considers, among other factors, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding if the application is granted and the degree of prejudice likely to be suffered by the respondent. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR reiterated that extension of time is an equitable remedy available only to a deserving party who satisfactorily explains the delay. 8.The impugned judgment was delivered on 16th October 2025. The present application was filed on 3rd December 2025. Taking into account the thirty days provided under Section 79G, the delay beyond the prescribed period is approximately seven days. Such delay cannot, in the circumstances of this case, be described as inordinate. 9.The explanation tendered by the Applicant is that he applied for typed proceedings and a copy of the judgment on 29th October 2025 but the same were not availed within the period he reasonably expected. Although it is settled that an appeal may be lodged without awaiting certified proceedings, the Court cannot ignore the practical reality that litigants often seek copies of the judgment to make an informed decision on whether to appeal and to formulate proper grounds of appeal. The explanation offered is plausible and has not been displaced by any evidence from the Respondent demonstrating that the Applicant deliberately slept on his rights. 10.The Respondent has urged that the intended appeal is unmeritorious. At this interlocutory stage, however, the Court is not required to conduct a mini appeal or make definitive findings on the merits. It is sufficient if the intended appeal is not frivolous. A perusal of the draft Memorandum of Appeal discloses complaints touching on the trial court's evaluation of the evidence and application of the law. Whether those grounds will ultimately succeed is a matter for the appellate court after hearing the appeal. At this stage, I am satisfied that the intended appeal raises arguable issues deserving consideration. 11.On prejudice, the Respondent has merely asserted that litigation should come to an end. While finality of litigation is an important principle, no specific prejudice incapable of compensation by an award of costs has been demonstrated. On the other hand, denying the Applicant an opportunity to ventilate his intended appeal on account of a delay of about seven days, which has been reasonably explained, would amount to shutting him out from the appellate process on a technicality. As was observed in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the law does not set out the minimum or maximum period of delay that is excusable; what matters is whether the delay has been satisfactorily explained. 12.The discretion donated under Section 79G of the Civil Procedure Act is intended to advance substantive justice while balancing the competing interests of both parties. Having considered all the relevant factors, I am persuaded that the Applicant has demonstrated good and sufficient cause to warrant extension of time. 13.Accordingly, the Notice of Motion dated 3rd December 2025 is hereby allowed on the following terms:1.Leave is hereby granted to the Applicant to file an appeal out of time against the judgment delivered on 16th October 2025 in the subordinate court.2.The annexed Memorandum of Appeal shall be deemed as duly filed upon payment of the requisite court fees, if not already paid, within seven (7) days from the date hereof.3.The Record of Appeal shall be filed and served within forty-five (45) days from the date of this ruling.4.The costs of this application shall abide the outcome of the intended appeal.It is so ordered. DATED, DELIVERED AND SIGNED AT EMBU THIS 16TH DAY OF JULY, 2026…………………………………….HON. E.C CHERONOELC JUDG, EMBUIn the presence of;M/S Mulela for the Respondent-present.Applicant in person-present.Ruth C/A-present.