https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9679

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL MISC NO. E232 OF 2024** **MARGARET NJERI GATHOGO…………………………APPELLANT** **VERSUS** **JACKLINE SYOKAU MUSYOKA………………………RESPONDENT** **RULING** 1. The application coming for consideration in this ruling is the one dated 29/7/204 filed by Margaret Njeri Gathogo, the applicant, against Jackline Syokau Musyoka, the respondent. 2. The application seeks a single substantive order that the court be pleased to grant the applicant leave to appeal out of time against the judgment delivered on 27th June 2024 in Mavoko Civil Suit No. E357 of 2022. 3. Further, the applicant is also seeking for orders that the attached memorandum of appeal be deemed as duly filed. 4. The application is brought under Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, as well as Section 79G and Section 3A of the Civil Procedure Act, together with all other enabling provisions of the law. 5. The grounds advanced in support of the motion are that the proposed appeal has good chances of success, that the delay in filing the appeal was inadvertent and excusable and that the application is brought in good faith and will not prejudice the respondent. 6. Further, that the applicant is willing to abide by any reasonable conditions the court may impose, and that it is in the interest of justice to grant the orders sought. 7. The application is supported by the affidavit of Kelang'ani Eddah, an advocate in the firm representing the applicant. 8. In her affidavit, she deposes that she is well conversant with the matter and competent to swear the affidavit. She states that the applicant filed Mavoko Civil Suit No. E357 of 2022 against the respondent, and judgment was delivered on 27th June 2024. 9. She states that the judgment was originally scheduled for 18th June 2024 but was rescheduled and postponed without notice to the parties. 10. Her firm was not aware that the judgment would be delivered on 27th June 2024, and by the time she obtained a typed copy of the judgment, the time limited for filing an appeal had already lapsed. 11. She therefore contends that the failure to file the appeal on time was not intentional but excusable. 12. She further asserts that the appeal raises serious issues that ought to be heard and determined on their merits, and a copy of the memorandum of appeal is attached to her affidavit. 13. She maintains that the application is made on bona fide grounds and that no prejudice will be suffered by the respondent if the orders are granted. 14. She also deponed that the court has discretion to enlarge the time for doing an act after expiry in order to dispense substantive justice, and that the application has been filed without unreasonable delay and is in the interests of justice. 15. The respondent filed a Replying Affidavit sworn by the legal officer at Jubilee Allianz Insurance Company, the respondent's insurer who is duly authorized by the board of directors to swear the affidavit in reply to the applicant's application. 16. The deponent has the authority of the respondent to swear this affidavit and is competent to depose to the matters herein. 17. He has read the applicant's application and supporting affidavit sworn by Kisiang'ani Eddah on 29th July 2024, and this affidavit constitutes his reply thereto. 18. The application is devoid of merit, misconceived, ill-advised, and should be dismissed with costs. 19. The applicant seeks leave to file an appeal out of time, with the original deadline having expired on 27th July 2024. 20. The applicant claims the delay was caused by lack of notice of the judgment date and by receiving typed proceedings only after the appeal period had lapsed. 21. The deponent argues that the applicant already had a copy of the judgment and could have filed a memorandum of appeal along with it, while seeking additional time to file the record of appeal pending the typed proceedings. 22. The reasons given by the applicant are unfounded, and she has not satisfied any of the settled legal principles for extending time to appeal, nor has she advanced substantial reasons for the delay. 23. The application is misconceived because it does not conform to the guidelines set out in Section 79G of the Civil Procedure Act. 24. The court lacks the power to exercise its discretion in favour of allowing this application. 25. The court is bound by the provisions of Section 79G of the Civil Procedure Act and cannot go beyond its requirements. 26. The respondent would be greatly prejudiced if the orders sought were granted and the applicant were allowed to file the intended appeal out of time. 27. In light of the foregoing, she deposed that the application dated 29th July 2024 is devoid of merit and warrants dismissal with costs to the respondent. 28. The parties filed written submissions as follows; The applicant, Margaret Njeri Gathogo, submitted that she seeks leave to appeal out of time against a judgment delivered by the trial court on 27th June 2024. 29. Her notice of motion and supporting affidavit were filed on 29th July 2024, which she contends is timely and does not constitute inordinate delay. 30. The applicant explains that the delivery of the impugned judgment was rescheduled without any notice to her, because the trial court was being transferred. 31. The respondent opposed the application through a replying affidavit dated 27th January 2024, arguing that no substantive reasons had been given and that the application should be dismissed with costs. 32. The applicant submits that the respondent has not denied the fact that the judgment was rescheduled without notice, and therefore the reasons advanced are sufficient to warrant the grant of the orders sought. 33. She prays that the Honourable Court find that the delay is not inordinate and proceed to allow the application 34. The respondent opposes the applicant’s application seeking leave to appeal out of time. 35. The applicant argues that the delay was caused by her lack of awareness of the judgment, and that by the time she learned of it, the statutory thirty‑day period for appealing from the subordinate court to the High Court, as prescribed by Section 79G of the Civil Procedure Act, Cap 21, had already lapsed on 27 July 2024. 36. The respondent contends that the application lacks merit and should be dismissed. 37. The court directed that the matter be canvassed by way of written submissions. 38. In the respondent’s submissions, it is argued that the applicant has failed to satisfy the criteria for extension of time, as established by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR.** 39. In that case, the Court held that extension of time is not a right but an equitable remedy available only to a deserving party at the court’s discretion, and that the party seeking extension must explain the reason for delay to the court’s satisfaction. 40. The respondent submits that the applicant’s claim of unawareness of the judgment date is not sufficient cause, because she had a duty to exercise due diligence in following up on her case. 41. Reliance is placed on **Habo Agencies Limited v. Wilfred Odhiambo Musingo [2015] eKLR,** where the Court of Appeal stated that simply stating lack of awareness of a judgment date is not enough, as the duty to follow up lies squarely on the litigant and failure to do so amounts to negligence that courts cannot excuse. 42. Further reliance is placed on **Mwangi S. Kimenyi v. Attorney General & Another [2014] eKLR,** which emphasised that litigants and advocates must be vigilant and proactive in pursuing their matters, and that absence of notification does not absolve them from the obligation to exercise due diligence in ascertaining case developments, including judgment dates. 43. The respondent further argues that while courts have discretion to extend time, that discretion must be exercised judicially and based on valid reasons, and refers to **First American Bank of Kenya Ltd v. Gulab P. Shah & 2 Others [2002] eKLR,** which sets out the factors to consider: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent. 44. The respondent concludes that the applicant has not established sufficient cause and that the court should not entertain such laxity 45. The issues for determination in the application dated 29th July 2024 are as follows; 46. *Whether the applicant has demonstrated sufficient cause to warrant the grant of leave to appeal out of time.* 47. *Whether the proposed appeal is arguable and not frivolous.* 48. *Whether the respondent will suffer any prejudice if the orders are granted.* 49. The applicant’s advocate explained that the judgment was rescheduled and delivered on 27th June 2024 without notice to the parties, and that by the time a typed copy of the judgment was obtained, the statutory period for filing an appeal had already lapsed. 50. This explanation is plausible and demonstrates that the delay was not intentional. The delay from 27th July 2024, when the appeal period expired, to 29th July 2024 when this application was filed, is minimal and cannot be said to be inordinate. 51. The respondent has not demonstrated that he will suffer any prejudice that cannot be adequately compensated by costs. 52. The principles governing extension of time are well settled. 53. In **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra),** the Supreme Court held that extension of time is an equitable remedy available at the court's discretion, requiring the applicant to explain the delay to the court's satisfaction. 54. The Court in **First American Bank of Kenya Ltd v Gulab P. Shah & 2 Others (supra)** further set out the factors to consider, including the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent. 55. The proviso to Section 79G of the Civil Procedure Act allows the court to admit an appeal out of time where the appellant satisfies the court of good and sufficient cause. I am satisfied that the applicant has met this threshold. 56. The applicant has annexed a draft memorandum of appeal which raises issues that are not frivolous and deserve consideration on merit. 57. It is in the interest of substantive justice that the applicant be given an opportunity to prosecute her appeal. 58. The applicant is granted leave to appeal out of time against the judgment delivered on 27th June 2024 in Mavoko Civil Suit No. E357 of 2022. 59. The memorandum of appeal attached to the application is deemed duly filed upon payment of the requisite filing fees. 60. The applicant shall file and serve the record of appeal within 30 days of today's date. 61. Costs of this application shall be in the cause. 62. Orders to issue accordingly. Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of June, 2026. 1. **N. ONGERI** **JUDGE** In the presence of: No appearance for the Appellant No appearance for the Respondent Chrispin – Court Assistant