https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9034

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **MISCELLANEOUS APPLICATION NO E005 OF 2025** **JAPHETH ANYIRA AGURA……..…………………………………………APPLICANT** **VERSUS** **BASHY AFRICAN CREDIT LIMITED…………..……………………RESPONDENT** **RULING** **INTRODUCTION** 1. In his Notice of Motion dated and filed on 13th February 2025, the Applicant herein sought leave to appeal against the Judgment of Hon P. Karimi in Vihiga Principal Magistrate’s Court **Civil Case No E228 of 2022** delivered on 27th November 2024, out of time. 2. He swore an Affidavit in support of his said application on 13th February 2025. His case was that he was not aware of the judgment until when he visited his advocate’s office in February 2024 (sic). He stated that prior to his visit in February 2025, he had visited his advocate’s office on several occasions and he was informed by the Clerk that the judgment had not yet been delivered. 3. He added that in the said period, he was unwell following a road accident, and hence the delay in filing the appeal was beyond his control. He contended that he was aggrieved by the judgment and wished to challenge the same. He was emphatic that the delay was not deliberate and was excusable because had he been informed of the same earlier, he would have appealed against the judgment within time. 4. In opposition to the said application, Bashiri Kipimo, a Director of the Respondent herein, swore a Replying Affidavit on 8th July 2025. The same was filed on even date. The Respondent averred that the only accident the Applicant was involved in was in 17th November 2023 which was one (1) year prior to the judgment and commencement of the trial. Its assertion was that no sufficient or satisfactory reason was given for delay in filing the appeal herein since the Applicant was represented by an advocate who was sufficiently mapped and, hence the received a message from the judiciary that judgment had been delivered. 5. The Applicant swore a Supplementary affidavit on 25th July 2025. The same was filed on 29th July 2025. He reiterated that together with his family, he was involved in a serious road accident he on 17th November 2023, and they sustained serious injuries which they were still nursing. He stated that this drained them financially and as a result, he did not have sufficient funds to pay the legal fees. He was emphatic that a matter of an accident was grave in nature and he could not have used such an avenue to get orders. 6. His Written Submissions were dated and filed on 28th October 2025 while those of the Respondent were dated and filed on 23rd August 2025. This Ruling is therefore based on the said Written Submissions. **LEGAL ANALYSIS** 1. The Applicant invoked Section 79G of the Civil procedure Act and placed reliance on the case of **Leo Sila Mutiso vs Rose Hellen Wangari Mwangi (1999) 2 EA 231**, where the court laid down the principles for extension of time being the length of delay, the reason for delay, the chances of the appeal succeeding and the degree of prejudice to the Respondent. 2. He was emphatic that the delay of two (2) months was not inordinate or inexcusable as the delay was caused by his ill health and financial constraints due to a prior accident. He cited **Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others (2014) eKLR**, where the court emphasised that extension of time was an equitable remedy available to deserving party only. He pointed out that he was not indolent and had demonstrated good faith to pursue his right of appeal. He contended that the intended appeal was arguable and raised serious issues relating to the ownership and security rights over Motor Vehicle Registration Number KCB 614 **(sic)** (hereinafter referred to as “the subject Motor Vehicle.”) 3. He invoked Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act and averred that the court was enjoined to administer justice without undue regard to procedural technicalities. He submitted that the Respondent would not suffer any prejudice if the leave was granted as the decree could still be executed if the appeal failed. 4. He added that he would suffer substantial loss if the Respondent proceeded to execute against him and disposed of the subject Motor Vehicle which was his means of livelihood. He pointed out that he had filed his present application promptly and was willing to abide by any conditions as to security that the court might impose. 5. In this regard, he referred this court to Order 42 Rule 6(2) of the Civil Procedure Rules, which required an applicant to demonstrate that substantial loss if the stay was not granted, that the application was made without unreasonable delay and that security had been given or there was willingness to give security for the due performance of the decree. He also relied on the case of **Butt vs rent Restriction Tribunal [1982] KLR 417** where it was held that the purpose of the stay was to preserve the subject matter of the appeal so that if the appeal was successful, it could not be rendered nugatory. 6. On its part, the Respondent pointed out that the Applicant stated that he was involved in an accident in the year 2023, which was prior to the hearing and delivery of the judgment in the matter. It asserted that he did not attach any documents to show that he was ill between 27th November 2024 and 13th February 2025. It also pointed out that the Applicant failed to attach an affidavit from the clerk or his advocate stating when he became aware of the delivery of the judgment. 7. It placed reliance on **Donald O. Raballa vs Judicial Service Commission & Attorney General (2018) KECA 641 (KLR)** where the court cited the case of **Rajesh Rughani vs Investment Ltd & Another (2005) eKLR,** where the court stated that it was not enough to simply accuse the advocate of failure to inform as if there was no duty on the client to pursue his matter. It also referred to the case of **Habo Agencies Limited vs Wilfred Odhiambo Musingo (2015) eKLR** that was also cited in **Donald O. Raballa vs Judicial Service Commission & Attorney General** (Supra), where the court opined that parties had a responsibility to show interest in and to follow up their cases even when they were represented by counsel. 8. It invoked Section 79G of the Civil Procedure Act and emphasised that the Applicant had not shown any sufficient and good reason for the court to exercise its discretion. It referred this court to the case of **Chege & another vs Michubu & Another (2022) KEHC 15229(KLR)** which cited the case of **Patrick Wanyonyi Khaemba vs Teachers Service Commission & 2 Others (2019) eKLR**, where it was held that plausible and satisfactory explanation was the key to unlock discretion. In the said case, the court therein observed that in the age of electronic communication, no party could be taken seriously by claiming difficulty to communicate with his advocate for a year and was emphatic that the onus was on the applicant to follow up on his case and not presume on the court’s discretion. 9. It pointed out that courts had declined to grant leave where there were no supporting documents to back up such as was in the case of **Samson Masaba Munikah vs Nancy Wanjiru Wangai & Another Nairobi Civil Application No E472 of 2022** where the applicant failed to provide documents to justify a claim of illness. 10. This court fully associated itself with the cases the Respondent had cited that in exercising its discretion to allow an application seeking extension to file an appeal out of time, a court had to be satisfied that there had to be a plausible explanation for the delay in filing the appeal and that the omission to file the same within time was excusable. 11. It was apparent from the court record that the decision the Applicant intended to appeal against was delivered on 27th November 2024. The present application was filed on 13th February 2025. About two (2) months and fifteen (15) days had since passed. This was not an inordinately long period. The reason that the Applicant advanced was inexcusable as he had an advocate but plausible. Indeed, a person who was nursing injuries was more likely to prioritise on his or her health rather than concentrate on litigation not only because of the injuries but also because finances were expected to be scarce. 12. Even if there had been no illness in this case, this court would have taken judicial notice of the fact that courts had held time and again that the blunders of an advocate should not be visited upon a litigant as blunders would continuously be made as human is to err. This principle was aptly stated in the case of**Philip Chemwolo & Another vs Augustine Kubende** **(1982-1988) 1 KAR 1036 where** it was held that blunders would continue to be made from time to time and that it did not follow that because a mistake had been made that a party should suffer the penalty of not having his case heard on the merits. 13. Indeed, every party had a right to access any court or tribunal to have its dispute heard and determined in accordance with Article 50(1) of the Constitution of Kenya, 2010. Even where a party delayed in doing an act, there was always a provision that would give it reprieve to seek justice. 14. Notably, Order 50 Rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said Order 50 Rule 6 of Civil Procedure Rules stipulates as follows:- “**Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:** **Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”.** 1. Against this backdrop, this court therefore perused the draft Memorandum of Appeal that was annexed to the present application. It did not, however, consider the merits or otherwise of the grounds of appeal that were set out therein as that was strictly under the purview of the appellate court. All that it was expected to do was to consider if the Applicant herein had demonstrated that he had arguable grounds of appeal. 2. The grounds in the Applicant’s draft Memorandum of Appeal showed that he was aggrieved by the Trial Court’s decision to dismiss his case. The said grounds ,therefore, sought that the appellate court determine if the Trial Court erred in law and in fact. These were arguable points of law. 3. Further, while considering whether or not to grant an order for extension to do any act, the court was also required to consider if the opposing side would suffer any prejudice if extension of time was granted. This court did not see any prejudice that the Respondent would suffer or was likely to suffer if the Applicant herein exercised his constitutional right of appeal. If there was any prejudice, then it did not demonstrate the same. 4. Taking all the factors hereinabove into account, it was the considered view of this court that that it was **in the interests of justice** (emphasis court) that the Applicant ought to be given an opportunity to have his intended Appeal heard on merit as he would suffer actually prejudice if he was denied an opportunity to fully present his appeal to be heard on merit. 5. Indeed, the power to grant orders **in the interest of justice and/or for the ends of justice** (emphasis court) is well captured in Section 3A of the Civil Procedure Act that states that:- **“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice** (emphasis court) **or to prevent abuse of the process of the court.”** 1. Having said so, it was the Applicant’s responsibility to have followed up to check on his matter. Failure to do so showed that he was indolent. However, as the delay was not inordinate, this court was not persuaded that it should condemn him to pay the Respondent’s costs. 2. Turning to the Applicant’s prayer for an order for stay of execution, this court noted that he introduced the same for the first time in his Written Submissions. He did not seek the said prayer in the present application. 3. An order was extracted from the prayers that appeared on the face of the application. It could not be extracted from the submissions as this would amount to trial by ambush as the opposing side would not have submitted on the same, as was evident in this case. Indeed, a party who sought orders was required to set out the same on the face of its application and not argue the same for the first time its submissions to enable the opposing side respond to the same in the first instance. 4. Consequently, as the order of stay of execution was not amongst the orders the Applicant had sought in the present application, this court determined that it could not entertain the said prayer. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated and filed on 13th February 2025 was merited and the same be and is hereby allowed in terms of Prayer No (1) therein on the following conditions:- 2. **THAT the Applicant be and is hereby directed to file and serve his Memorandum of Appeal in the appropriate file within fourteen (14) days from the date of this Ruling.** 3. **THAT the Applicant be and is hereby directed to file and serve his Record of Appeal in the appropriate file within one hundred and twenty (120) days from the date of this Ruling.** 4. **THAT this matter be mentioned on 5th October 2026 to confirm compliance of the order in Paragraph 25 hereinabove and/or for further orders and/or directions.** **5. Costs of the application herein will be in the cause.** 1. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **25th** day of **June** 2026 **J. KAMAU** **JUDGE**