https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7258

Oduor v Musembi (Civil Appeal E553 of 2024) [2026] KEHC 7258 (KLR) (Civ) (25 May 2026) (Judgment) Neutral citation: [2026] KEHC 7258 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E553 of 2024 AN Ongeri, J May 25, 2026 Between Joshua Odhiambo Oduor Appellant and Felix Makau Musembi Respondent (Being an Appeal from the Judgment of the learned Resident Magistrate Hon. Zena Kiboss (Ms.) delivered on 18/3/2024 in Nairobi CMCC No. E2517 of 2023) Judgment 1.The Application coming for consideration in this ruling is the one dated 30th April 2024. 2.The application is brought under sections 79G and 95 of the Civil Procedure Act, along with Orders 50 and 51 of the Civil Procedure Rules. 3.The applicant seeks the court’s permission to appeal out of time against a judgment delivered by the trial court on 18th March 2024, in which liability was apportioned on a 50:50 basis between the parties. 4.The applicant also asks that the attached memorandum of appeal be validated as the formal appeal and that the costs of the application be in the cause. 5.The grounds for the application include that the applicant is aggrieved by the apportionment of liability, that it is in the interests of justice to grant leave, that the application has been brought without delay, that the respondent will not suffer any prejudice if leave is granted, and that the applicant’s counsel mistakenly noted the judgment delivery date as 18th April 2024 instead of 18th March 2024. 6.Counsel attended court on 18th April only to be told the judgment had already been delivered a month earlier. 7.The application is supported by an affidavit sworn by Kanana Kaburu, the advocate for the applicant, who explains that she misdiarised the correct date. 8.She states that this mistake should not be visited upon the client, that the application was made without unreasonable delay, and that it is just to grant leave. 9.Annexed to the supporting affidavit is a draft memorandum of appeal, which raises two main grounds: first, that the trial magistrate erred by apportioning liability at 50:50, and second, that the trial court erred by failing to award interest on special damages from the date of filing the suit. 10.The applicant therefore prays that the respondent be found 100% liable, that the appeal be allowed with costs, and that interest on special damages be awarded from the date of filing suit. The application was filed in court on 15th May 2024. 11.The parties filed written submissions as follows; The appellant submitted that he is seeking leave to file an appeal out of time against a subordinate court's judgment delivered on March 18, 2024. 12.Moving under Section 79G and Section 95 of the Civil Procedure Act, along with the court's inherent discretionary powers, the applicant contends that there is good and sufficient cause for the modest delay and that the proposed appeal carries arguable merit. 13.Legal precedence is cited to demonstrate that statutory provisions exist to extend time and ensure that genuine, excusable mistakes do not bar parties from accessing justice. 14.In this instance, the delay arose from an innocent mis-diarization of the judgment date by legal counsel, a mistake discovered on April 18, 2024, which promptly led to the drafting of the notice of motion on April 30, 2024. 15.Citing established case law, the applicant maintains that blunders by legal counsel should not be visited upon the client to deny them a hearing on the merits, as the fundamental purpose of the court is to decide the rights of the parties rather than impose discipline. 16.Furthermore, the applicant asserts that the intended appeal raises serious and arguable points regarding the evaluation of negligence evidence and the 50:50 apportionment of liability, noting that an appeal needs only to raise a triable issue rather than guarantee ultimate success. 17.Invoking Article 159(2)(d) of the Constitution of Kenya, which directs courts to administer justice without undue regard to procedural technicalities, the applicant asks the court to favorably exercise its discretion, as the delay has been transparently explained and no party will suffer prejudice beyond what can be remedied by costs. 18.The respondent submitted in opposition to the application dated April 30, 2024, brought by the Applicant, Joshua Odhiambo Oduor. 19.The Applicant is seeking leave from the High Court of Kenya at Nairobi to file a Memorandum of Appeal out of time following a judgment delivered in the lower court, Milimani MCCC/E2517 of 2023, on March 18, 2024, and uploaded on March 31, 2024. 20.The Respondent argues that the application is an afterthought, an abuse of the court process, and that the Applicant has been indolent, taking eighteen months to prosecute the application since its initial filing. 21.The Respondent asserts that the Applicant has failed to provide any good, sufficient, or plausible cause for the delay in filing the appeal. 22.While the Applicant blames a mis-diarization of the judgment date, the Respondent points out that the judgment date was originally taken by consent, meaning the Applicant was properly informed and had more than twenty days within the legally allowed period to deliberate and lodge an appeal on time. 23.Furthermore, the Respondent highlights that the Applicant went ahead and filed the appeal anyway without first obtaining the required leave of the court. 24.Relying on Section 79G of the Civil Procedure Act, the Respondent submits that statutory time limits for filing appeals are jurisdictional. 25.Consequently, an appeal filed out of time without the court's leave is a complete nullity that the court has no power to regularize or cure. 26.Invoking the principles governing judicial discretion for the extension of time, which establish that such an extension is an equitable remedy and not an automatic right, the Respondent urges that the Applicant has entirely failed to discharge the burden of laying a satisfactory basis for the court to exercise this discretion. 27.Ultimately, the Respondent maintains that the Applicant slept on their rights, deserves no audience before the court, and urges that the application be dismissed with costs in the best interests of justice. 28.The issues for determination in this application are as follows;i.Whether the applicant has established a good and sufficient cause to explain the delay in filing the appeal out of time under Section 79G of the Civil Procedure Act,ii.Whether the intended appeal demonstrates arguable merit, andiii.Whether the respondent will suffer any prejudice if the court exercises its discretion to extend time. 29.Under Kenyan law, the principles governing the extension of time to file an appeal out of time are well-settled. 30.The court exercises an equitable and judicial discretion, which must be applied transparently, objectively, and based on the specific facts of each case. 31.As established by the Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, an extension of time is not a matter of right but an exercise of judicial discretion where the burden of proof lies squarely on the applicant to show a plausible reason for the delay. 32.The court in that landmark case laid down crucial parameters, including the length of the delay, the reason for the delay, whether the intended appeal is arguable, and the degree of prejudice to the respondent. 33.In the present case, the judgment of the trial court was delivered on 18th March 2024. 34.By virtue of Section 79G of the Civil Procedure Act, an appeal from a subordinate court to the High Court must be filed within thirty days, meaning the statutory deadline fell on or about 17th April 2024. 35.The applicant's counsel discovered that the judgment had already been delivered when they attended court on 18th April 2024, and subsequently filed this application on 15th May 2024. 36.The period of delay is under a month from the expiry of the statutory timeline, which this court considers to be a modest and reasonable delay. 37.The explanation offered by the applicant's counsel is an innocent mis-diarization of the judgment delivery date, mistakenly tracking it for 18th April 2024 instead of 18th March 2024. 38.While the respondent rightly points out that the date was taken by consent, Kenyan jurisprudence heavily favors the principle that an advocate's blunder or administrative oversight should not be visited upon an innocent litigant to deny them a hearing on the merits. 39.Where a mistake is made by an advocate due to a human error like mis-diarization, and it is a bona fide mistake, the court should lean toward excusing the error so that the substantive rights of the parties can be determined. 40.The respondent argues that the applicant filed a memorandum of appeal without prior leave, rendering it a nullity that cannot be regularized. 41.However, the modern approach to the administration of justice dictates a shift away from rigid procedural technicalities toward substantive justice, as anchored under Article 159(2)(d) of the Constitution of Kenya and the "O2" (Oxygen) principle in Sections 1A and 1B of the Civil Procedure Act. 42.Courts of law should be slow to shut out a litigant permanently due to procedural missteps if the delay can be explained and the other party can be compensated in costs. 43.Furthermore, in examining the draft memorandum of appeal, the applicant challenges the 50:50 apportionment of liability and the failure to award interest on special damages. 44.An intended appeal does not need to guarantee ultimate success to justify an extension of time; it merely needs to raise triable, bona fide issues that are worthy of standard appellate scrutiny. 45.An arguable appeal is simply one that is not frivolous. The questions surrounding the trial court's evaluation of negligence evidence and the calculation of interest are clearly arguable points of law and fact. 46.Additionally, the respondent has not demonstrated any unique or irreparable prejudice that cannot be adequately remedied by an award of costs. 47.Denying the application would permanently lock the gates of justice against the applicant over a minor temporal delay, whereas granting it allows both parties to ventilate the dispute fully on its merits. 48.Consequently, the court finds that the applicant has met the threshold for the exercise of this court’s discretion in his favor. 49.The application dated 30th April 2024 is hereby allowed, the delay in filing the appeal is excused, the memorandum of appeal filed in court is deemed as properly filed. 50.The costs of this application shall abide the outcome of the main appeal. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentUbah – Court Assistant