https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7357

Mbiyu v Sabema International Limited (Civil Miscellaneous Application E233 of 2025) [2026] KEHC 7357 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEHC 7357 (KLR) Republic of Kenya In the High Court at Eldoret Civil Miscellaneous Application E233 of 2025 RN Nyakundi, J May 26, 2026 Between Jacob Kigamba Mbiyu Applicant and Sabema International Limited Respondent Ruling 1.Before this Court is a notice of motion expressed to be brought under Section 79G and 3A of the Civil Procedure Act, Order 51(1) of the Civil Procedure Rules and all other enabling provisions of the law, dated on 15th day of August 2025 seeking the following orders:a.The Honourable Court be pleased to grant the Applicant leave to file an appeal out of time against the judgment delivered on 8th July 2025, in Eldoret CMCC No.881 of 2022.b.The costs of this application be in the cause. 2.Thus application is based on the following grounds:-a.That the Applicant, being aggrieved by the judgment delivered on 8th July 2025, in Eldoret CMCC No. 881 of 2022, is desirous of lodging an appeal therefrom, but the statutory period for filing the said appeal has since lapsed.b.That on 4th July, 2025, when the matter came up for delivery of judgment, Counsel for the Applicant attended Court, but the judgment was not ready, and the Court rescheduled the delivery to 8th July, 2025.c.That on the said date, Counsel for the Applicant, inadvertently diarized the date for delivery of judgment as 11th August, 2025, instead of the scheduled date of 8th July 2025.d.That on 11th, August, 2025, learned Counsel for the Applicant, upon logging into the Court session, discovered that judgment had in fact been delivered on 8th July, 2025.e.That upon retrieving and perusing the judgment from the judiciary E-filing portal, the Applicant promptly filed the present application without any undue delay.f.That the intended appeal raises weighty and arguable grounds with a high probability of success.g.That unless the extension sought is granted, the Applicant will suffer substantial prejudice and be unjustly denied the opportunity to be heard on appeal.h.That the application is made in good faith and for the ends of justice to be met. Decision 3.This is an application by the Applicant to file an appeal out of time against the judgment of the law Court indicated as Eldoret CMCC No. 881 of 2022. This Court gave directions on 28th October 2025 on the disposal of that application but as at the time of preparing this ruling there was no evidence of replying affidavit or grounds of opposition. 4.The question of time upon which an Applicant has been provided for under Section 79 as read with (G) of the CPA is to lodge the appeal within 30 days from the delivery of judgment. The same Civil Procedure Acts and Rules also provides discretionary powers for a Court of law to extend time for an aggrieved party to file the intended appeal having demonstrated sufficient cause why he/she delayed in filing his/her appeal within the context of the law. 5.It is trite that extension of time as a creature of equity and therefore an Applicant who seeks a remedy of equity on enlargement of time must come before it with clean hands. The circumstances upon which the Courts exercise its power under jurisdiction of extension of time are clearly explained by the persuasive decision in the case of Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 which observed:“it follows that when considering whether to grant an extension of time for an appeal against a final decision in a case of any complexity, the Courts should consider “all the circumstances of the case” including:a.the interests of the administration of justice;b.whether the application for relief has been made promptly;c.whether the failure to comply was intentional;d.whether there is a good explanation for the failure;e.the extent to which the party in default has complied with other rules, practice directions and Court orders;f.whether the failure to comply was caused by the party or his legal representative;g.the effect which the failure to comply had on each party; andh.the effect which the granting of relief would have on each party.In the case of a procedural appeal the Court would also have to consider item (g): "whether the trial date or the likely trial date can still be met if relief is granted". 6.The Applicant has laid a foundation on his affidavit based on the following reasons why the delay was occasioned:a.That on 4th July, 2025, when the matter came up for delivery of judgment, Counsel for the Applicant attended Court, but the judgment was not ready, and the Court rescheduled the delivery to 8th July, 2025.b.That on the said date, Counsel for the Applicant, inadvertently diarized the date for delivery of judgment as 11th August, 2025, instead of the scheduled date of 8th July 2025. 7.That is in so far as the law explains itself and in our jurisdiction the Apex Court in Salat v IEBC & 7 Others [2014] eKLR held that:a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;c.Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 8.Based on the above principles this Court arrived at the following conclusion:Although the length of the delay is a factor to be considered there is no principle to be extracted from the decided cases as to any particular period of time beyond which an application may not succeed. The length of the delay is but one factor to be considered by the Court in its aim of dealing fairly with the parties, avoiding prejudice, saving expenses and ensuring that the cases are dealt with expeditiously. 9.In my judgment having regard to all the circumstances, it is just, fair and responsible to grant the application with the following orders in place:a.That the time for filing and serving the Applicants record of appeal be and is hereby extended within 35 days from today’s date.b.That the respondent upon being served with the record of appeal shall trigger the case docket being placed before the presiding Judge for allocation of the file to a relevant Court which shall in turn undertake the protocols on admission and determination of the appealc.The costs of this application shall abide the outcome of the appeal. DATED & DELVERED AT ELDORET THIS 26TH DAY OF MAY 2026........................................R. NYAKUNDIJUDGE