Kigen v Kigen & another (Civil Application E044 of 2026) [2026] KECA 1460 (KLR) (17 July 2026) (Ruling)

Kigen v Kigen & another (Civil Application E044 of 2026) [2026] KECA 1460 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1460 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E044 of 2026 MN Nduma, JA July 17, 2026 Between Johnstone Kipkoech Kigen Applicant and Richard Kigen 1st Respondent Daudi Kipkurui Kigen 2nd Respondent (Being an application for extension of time to file an Appeal out of time from the decision of Eldoret High Court (R. Nyakundi, J.) delivered on 23rd February 2026inHCCA NO. E144 OF 2024) Ruling 1.The applicant moved this Court by a motion dated 23rd April 2026 seeking leave to appeal out of time against the decision made in Eldoret High Court Civil Appeal No. E140 of 2024 on 23rd February 2026. The applicant also sought directions that the notice of appeal and Memorandum of Appeal attached to the application be deemed as duly filed and served upon granting of extension of time. 2.The application is brought under rule 4, 42 and 82 of the Court of Appeal Rules, 2022. Its grounds are set out in the supporting affidavit of even date by Johnstone Kipkoech Kigen, the applicant. Similar grounds are restated in the written submissions and further written submissions dated 30th June 2026 and 1st July 2026 respectively. 3.It was the applicant’s case that he is a self-representing lay person due to financial constraints. The applicant explained that he is not well versed with procedural technicalities of lodging an appeal including the timelines for service. The applicant further submits that he suffers from memory loss which further compounded the delay in adhering to the timelines. He asserts that he believed he could not serve the respondents with the appeal before obtaining full typed proceedings from the High Court. He adds that he pursued the documents from 23rd February up to late March 2026 under mistaken believe that these were necessary to lodge a notice of appeal. 4.The applicant submits that he subsequently obtained the documents and prepared a Notice of Appeal dated 10th March 2026 and a Memorandum of Appeal dated 21st April 2026. He also submits that he served the Notice of Appeal on the respondents on 31st March 2026. He therefore urges that the delay in filing and service was not deliberate or unreasonable as he was still grappling with health and financial challenges. He also asserts that he has an arguable appeal and no prejudice will be occasioned to the respondent if the orders sought are granted, which cannot be remedied by an award of costs. 5.While the 1st respondent did not file any response to the application, the 2nd respondent opposed it through a replying affidavit by David Kipkurui Kigen, the 2nd respondent, dated 24th June 2026. 6.In the written submissions filed by Mukabane & Kaguza advocates, the 2nd respondent submits that the application is incompetent in law in that the applicant failed to adhere to mandatory procedural requirements including timely filing and service of the notice of appeal and request for typed proceedings within prescribed timelines. 7.That the applicant has not met the threshold established for grant of extension of time the delay being inordinate and the applicant has not satisfactorily explained it. Further, that the applicant has not demonstrated the intended appeal is arguable since the same is frivolous and devoid of merit. Additionally, the 2nd respondent avers that they stand to suffer prejudice due to the prolonged anxiety occasioned by delayed enjoyment of the fruits of their judgement. 8.The principles governing grant of extension of time are well settled. Pursuant to Rule 4 of this Courts Rules, the Court exercises unfettered discretion to extend time. This position is restated in Chirchir vs. Kuria & Another (Civil Application E084 of 2021) [2023] KECA 21 (KLR). 9.In determining the scope of discretion, we refer to the case of Heldo Foodstuff Ltd vs. Kiptugen & 6 others (Civil Application E168 of 2021) [2023] KECA 919 (KLR) where the learned Judges considered the factors enunciated in Muringa Company Limited vs. Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR) as follows:“…the exercise of discretion is guided by factors which are by no means exhaustive including: the length of delay, the reasons for such delay, the possible prejudice if any that each party stands to suffer, the need to protect a party’s opportunity to fully agitate its dispute against the need to ensure timely resolution of disputes and whether the intended appeal has chances of success. In considering the last principle, it must be borne that it is not really the role of the Judge to determine definitively the merits of the intended appeal. That is for the full court if and when it is ultimately presented with the appeal…” 10.The Judgment of the court Aquo was delivered on 23rd February 2026 and this application was filed on 24th April 2026, a delay of two months. This delay is not inordinate and has been satisfactorily explained by the indigent and sickly applicant who represents himself being unable to pay services of a lawyer to help him navigate timeously the procedures of noting an appeal and obtaining typed proceedings to file the substantive appeal. 11.The applicant has already obtained typed proceedings and attached the notice of appeal and memorandum of appeal to this application. The intended appeal discerned from the grounds of appeal advanced in the memorandum of appeal attached demonstrate an arguable appeal. The respondents have notshown that they stand to suffer prejudice that cannot be mitigated by an award of costs. 12.Accordingly, the application dated 23rd April 2026 is hereby allowed. The attached notice of appeal and memorandum of appeal are deemed as filed. The applicant shall file the record of appeal within prescribed timelines from the date of this ruling. Costs of this application shall abide the outcome of the appeal. DATED AND DELIVERED AT ELDORET THIS 17TH DAY OF JULY, 2026.NDUMA NDERI………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.