https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11369

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **MISCELLANEOUS CIVIL APPLICATION NO. E077 OF 2026** **JOYCE WANJA GACHIE…….................................. APPLICANT** **VERSUS** **LUCAS MUNIU MUIRURI………...……….……....... RESPONDENT** **RULING** **Introduction** 1. The application dated 22nd April 2026 seeks for orders of leave to file an appeal out of time against the judgment in *Ruiru Small Claims Court Commercial Case No. E422 of 2025 delivered on 3rd October 2025.* 2. The respondent opposed the application and filed a Notice of Preliminary Objection dated 5th June 2026. **Applicant’s Case** 1. The applicant states that the judgment in the lower court was delivered on *3rd October 2025* but a copy of the same was obtained on *25th March 2026*. On the judgment date, the learned adjudicator indicated that the judgment was ready and would be uploaded in the portal by close of business that day however, the same was not uploaded on the same day prompting her advocates to follow up with the registry to enquire about the said judgment to no avail. 2. It later emerged that a different judgment was uploaded on the e-filing system on *13th February 2026* which judgment had the correct case number and parties but the entire structure, analysis and finding were for another matter prompting her advocate to write to the court. The applicant avers that they kept waiting for the accurate judgment since the wrongly posted judgment was later on deleted from the portal making it hard for her to know the outcome. On 25th March 2026, a correct judgment was uploaded which was way long upon delivery of the said judgment and at the foot of the judgment is a quick response code indicating the date of posting which differs from the date of delivery. 3. The applicant avers that the delay in filing the appeal was not intentional but was due to the delay in acquiring a copy of the judgment as she made several efforts to obtain the copy of the judgment and made various registry visits. 4. The applicant is apprehensive that unless the application is heard and determined, the respondent may commence the process of execution to her detriment. She further states that she has an arguable appeal with overwhelming success. **The Respondent’s Case** 1. The respondent argues that the application ought to be dismissed having been filed out of time and with no sufficient or good cause under **Section 79 of the Civil Procedure Act**. 2. Parties put in written submissions. **The Applicant’s Submissions.** 1. The applicant relied on the case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd** (no citation given) and submitted that the instant preliminary objections is not on a pure point of law and it is raised in circumstances that require discretion. Further reliance was placed in the case of **National Bank of Kenya vs Peter Kipkoech Korat & Another (2005) eKLR** and the applicant submitted that the issues she has raised require evidence and cannot therefore be entertained by way of a preliminary objection. 1. The applicant submitted that the grant of leave to file an appeal out of time is discretionary. Whilst relying on the case of **Nicholas Kiptoo arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others** (no citation given), the applicant asserted that she has satisfied the threshold for leave to file an appeal out of time as she has provided a plausible, honest and satisfactory explanation for the delay. She further accounted for the period of delay and demonstrated that the same was occasioned by circumstances beyond her control rather than indolence, negligence or deliberate disregard of the law. Upon becoming aware of the procedural lapse, she acted with reasonable promptitude and moved the court without undue delay which demonstrates diligence and genuine intention to pursue the intended appeal. 2. The applicant submitted that the draft memorandum of appeal discloses arguable grounds of appeal raising substantial questions of fact and law and therefore the intended appeal is not frivolous, vexatious or intended to delay the course of justice. Further, no prejudice shall be occasioned to the respondent. **The Respondent’s Submissions**. 1. The respondent relied on **Section 79G of the Civil Procedure Act** and the case of **Kenya Agricultural research Institute vs Kariuki & 16 Others (Application E001 of 2023) [2023] KESC 25 (KLR) (Civ) (21 April 2023)** and submitted that the applicant has the burden of satisfactorily explaining the delay and demonstrating that her intended appeal is arguable. The respondent argued that the applicant admits that the judgment in the lower court was delivered on 3rd October 2025 and the judgment itself bears the said date. Further, the applicant admits that on the judgment date, the learned adjudicator indicated that the judgment was ready and would be uploaded on the portal by close of business. Despite that, the applicant claims that she only obtained a correct copy of the judgment on 25th March 2026 via the CTS some six months after delivery. Although she alleges that a wrong judgment was uploaded on 13th February 2025 and later deleted, she did not produce any copy of the alleged wrong judgment or any official communication from the court confirming such deletion. 2. The respondent further argued that the applicant’s letter dated 13th February 2026 purports to claim that judgment was not delivered on 3rd October 2025 which contradicts her clear admission that judgment was indeed delivered on that date. He further argued that the present application was filed on 22nd April 2026, a delay of approximately six months from the date of judgment. Such delay is inordinate and inexcusable especially given the expedited nature of small claims proceedings. 3. The respondent submitted that the applicant attributes the delay to waiting for a copy of the judgment yet she fails to demonstrate any diligent follow up. Her first written inquiry was the letter of 13th February 2026, dispatched more than four months after judgment was delivered. No explanation was offered for that prolonged silence. He further submitted that the applicant did not claim that she ever visited the physical registry to obtain a copy of the judgment. The e-filing portal is not the exclusive means of obtaining judgments and a diligent litigant would have attended court, made a formal request to the Deputy Registrar or filed a written application for a certified copy. Thus, the applicant’s inaction amounts to negligence and indolence. To buttress that point, the respondent relied on the case of **Mae Properties Limited vs Joseph Kibe & Another [2017] KECA 238 (KLR)**. 4. The respondent argued that the intended appeal is devoid of merit and is merely intended to delay the inevitable execution of a lawful decree. He further submitted that although the applicant stated that she obtained the correct judgment on 25th March 2026, she filed the present application on 22nd April 2026. Thus, the instant application was not filed immediately. The respondent submitted that judgment was entered in his favour in the sum of Kshs. 795,000/- plus costs and interest. The said judgment was delivered more than six months ago and he is therefore entitled to enjoy the fruits of his judgment. Thus, if the application is granted, he will be forced to wait for an indeterminate period while the applicant pursues an appeal that has little chances of success. **Analysis and Determination** 1. Having considered the deposition of the Applicant and submissions by the Parties, two fundamental issues arise for determination in this Application: 2. *Whether the Preliminary Objection raised by the Respondent meets the required threshold* 3. *Whether the application for leave to appeal out of time is meritorious.* ***Whether the Preliminary Objection raised by the Respondent meets the legal test of a valid Preliminary Objection*** 1. A Preliminary Objection is regarded as proper by the court only if it meets the established procedural and substantive threshold. The threshold of a preliminary objection was articulated in the cerebrated case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA** 69 and subsequently adopted with approval by the Supreme Court in **Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR** where the Court held as follows: ***“[31] To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696:*** ***“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.*** 1. Further, in the case of **Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR** the Court explained: ***“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.*** ***In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.”*** 1. The Supreme Court elaborated on the jurisprudential value upon which the raising of Preliminary Objections is founded in the case of **Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling)** where it held as follows: ***“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…”*** 1. Having regard to the foregoing authorities, the fundamental characteristics of a Preliminary Objection may be summarized and condensed as follows: 2. ***Can be pleaded or is apparent on the face pleadings (or record).*** 3. ***a preliminary objection, argued successfully should be capable of disposing of the whole suit.*** 4. ***It is argued on the assumption that all the facts pleaded by the opposing side are correct*** 5. ***It cannot be raised if any fact has to be ascertained by evidence*** 6. ***It cannot be raised if what is sought is the exercise of judicial discretion.*** 7. The question thus becomes, does the Preliminary Objection raised against the instant Application by the Respondent herein satisfy the above threshold? 8. Firstly, the Applicant relies on facts that she claims were beyond her control as the reason why she was unable to lodge the appeal on time. Fundamentally, that the judgment of the lower Court was delivered on 3/10/2025 but it was not until 25/3/2026 that it was formally available through publication by uploading on the Court online platform (CTS). 9. The Respondent, while he did not file a Replying affidavit, contends that there exists other means, such as writing letter or visiting the registry which the Applicant could have employed to get the judgment on time, and which she has not demonstrated. This contention makes a factual assumption that indeed, the judgment which was not uploaded on the CTS existed in fact. It is a factual contestation that the Court will be forced to ascertain and thus removes the matter within the confines of a Preliminary Objection as while the Applicant claims that the judgment was not available in fact, the Respondent appears to suggest, without proof that it could be obtained physically. That takes the matter outside the realm of a Preliminary Objection. 10. Further, an Application under Section 79G of the Civil Procedure Act calls upon the Court to consider and weigh several factors in determining whether or not sufficient cause has been shown to warrant extension of time for filing an appeal out of time, this include but not limited to the length of time taken, the reasons given to account for the delay, prospects of success of the appeal and the prejudice to the Respondent. The weighing these factors will thus involve the exercise of this Court’s discretion. A Preliminary Objection cannot be raised in a matter that involves the Court’s exercise of discretion hence the instant Preliminary Objection lacks merit. 11. *Whether the application for leave to appeal out of time is meritorious* 12. The starting point in resolving this issue isreference **Section 79G of the Civil Procedure Act** which states:- **Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:** **Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.** 1. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of **Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR** an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so. 2. The Supreme Court in the case of **Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR** enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:- **“The underlying principles a court should consider in exercise of such discretion should include:-** 1. **Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;** 2. **A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;** 3. **Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;** 4. **Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;** 5. **Whether there will be any prejudice suffered by the respondent if the extension is granted;** 6. **Whether the application has been brought without undue delay.** 7. Similarly in the case of **Paul Musili Wambua vs Attorney General & 2 Others [2015]eKLR,** the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:- **“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”** 1. Applying the above principles to the present case, the judgment herein was delivered on 3rd October, 2025 with the Adjudicator undertaking to upload it on the Court online Platform (CTS) for the parties’ access. This was not done until 13/2/2026 but even then, the correct names of the parties were reflected but the contents of the judgment and analysis were disparate. It was deleted and the correct one uploaded on 25/3/2026. The record shows that the respondent’s advocates wrote to the court on 3rd November 2025 requesting for a decree and certificate of costs. Counsel for the applicant then wrote to the Executive Officer on 13th February 2026 informing the registry that the judgment uploaded on the CTS was wrong and kindly requested that the correct judgment be uploaded. From the CTS, it shows that the correct judgment was uploaded on 25th March 2026. The applicant filed the current application on 22nd April 2026 which is about one month after the judgment was uploaded. Thus, the application was filed timeously. 2. It is clear to this Court that the confusion that reigned was the solely caused by the failure to upload the correct judgment for several months post-delivery. Once the correct judgment was uploaded, the Applicant was able to file this application for extension of time to file an appeal out of time within a period of at least one month, the time frame ordinarily prescribed by law for lodging an appeal had the wrong judgment not been uploaded. 3. It is therefore my considered view that the delay was caused by the Court itself. It is manifest that from the deposition of the Applicant, which is not controverted that the delay in accessing the judgment after it was announced by the adjudicator on 3/10/2025 would be uploaded for parties to access it was caused by administrative lapses within the Court system. That prolonged delay that followed, including uploading the wrong decision and deleting it was not the fault of the Applicant and to blame her in the circumstances would be to victimise the victim. I find that the applicant has satisfactorily explained the reason for delay. 4. I have also perused the annexed Memorandum of Appeal and the judgment of the trial court and it is my considered view that the appeal raises arguable issues of law and thus the Applicant should be granted a chance to ventilate those issues on appeal. 5. It is my finding that the Applicant has satisfied the conditions for the enlargement of time to appeal out of time. 6. The Application dated 22nd April, 2026 is hereby allowed with the consequence that the applicant is granted leave to file the appeal within 30 days. 7. Each Party shall bear its own costs. ***Dated, signed and delivered virtually at Thika this 23rd day of July, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**