https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10589

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E042 OF 2022** ISAAC KIPYEGON LANGAT T/A KOLATO AUCTIONEERS.......................APPELLANT/RESPONDENT VERSUS HARUN WAINAINA KIBINGE..................RESPONDENT/APPLICANT **RULING** 1. The subject matter of this ruling is the application dated 26th March, 2026 taken out by the Respondent whereof he sought for inter alia: 2. ***That this court be pleased to extend the time within which the applicant may file a Notice of Appeal against the judgment of this court delivered by Hon. Lady Justice H. I. Ong’udi on 16/12/2025.*** 3. ***That this court be pleased to deem the Notice of Appeal dated 11th March, 2026 as duly filed and served upon payment of the requisite fees.*** 4. ***Costs of the application.*** 5. The Respondent/Applicant filed the affidavit and a further affidavit both sworn by Elizabeth Wangare Mukira in support of the motion. In response the Appellant/Respondent filed a replying affidavit sworn by Isaac Kipyegon Langat to oppose the motion. 6. When the application came up for interpartes hearing this court directed the application to be disposed of by written submissions. 7. I have considered grounds set out on the face of the motion and the facts deponed in the rival affidavits. I have further considered the rival written submissions. It is the submission of the Respondent/applicant that on 16th December, 2025, this court delivered its judgment on appeal whereof it dismissed his suit/amended plaint dated 17/08/2016 with partial costs. 8. The applicant avers that he is desirous to appeal against the aforesaid judgment and that he instructed the firm of Elizabeth Wangare & Co. Advocates to appeal to the Court of Appeal. 9. It is the submission of the applicant’s advocates that her law firm’s staff inadvertently failed to file the Notice of Appeal within the prescribed time under rule 77 of the Court of Appeal Rules, 2022. 10. In sum the applicant avers that the time within which to lodge a Notice of Appeal has lapsed. It is argued that the failure to file a Notice of Appeal within time was occasioned by a genuine human error. 11. It is said that the advocate for the applicant was under the impression that her law firm had prepared the Notice of Appeal prior to closure of offices over December holidays only to later learn that the same was not filed during the routine office bring ups of files. 12. It is pointed out that the intended appeal raises arguable and substantive points of law. This court was beseeched to exercise its discretion under Section 7 of the Appellate Jurisdiction Act and Section 95 of the Civil Procedure Act. 13. On its part, the appellant/Respondent opposed the motion arguing that there is nothing before the court showing that, that the applicant’s instructions were given to the advocate within the appointed time or at all to file an appeal. It is also submitted that there is no evidence that the applicant’s advocate gave instructions to her staff to file a Notice of Appeal. 14. The Appellant/Respondent further argued that it has not been disclosed when exactly the applicant’s advocates discovered the inadvertent mistake leading to the failure to file a Notice of Appeal. The Appellant/Respondent has argued that the inordinate delay has not been explained at all. It is also argued that the Respondent/Applicant has not demonstrate that he had an arguable appeal. 15. It is not in dispute that Respondent/Applicant did not file a Notice of Appeal within the prescribed time under rule 77 of the Court of Appeal Rules, 2022 that is within 14 days. 16. The High Court under Section 7 of the Appellate Jurisdiction Act is given a wide discretion to extend time for filing a notice of intention to appeal. 17. In this instant application the Respondent/Applicant has stated that due to an inadvertent mistake the Notice of Appeal was not filed within the prescribed. It is submitted that the applicant’s advocate’s staff made a genuine mistake and failed to file the notice of appeal within time. 18. This court is satisfied that the reason advanced by the Respondent/Applicant for his failure to file a Notice of Appeal within the prescribed time is plausible and genuine. The delay also is not inordinate. 19. In the circumstances and for the reasons given, this court will exercise its discretion in favour of the Respondent/ Applicant 20. The application dated 26th March, 2026 is found to be meritorious. It is allowed giving rise to issuance of the following orders: 21. ***Time is extended by 7 days to enable the Respondent/ Applicant to file a Notice of Appeal against the judgment delivered on 16th December, 2025 by Hon. Lady Justice H. I. Ong’udi.*** 22. ***The Notice of Appeal dated 11th March, 2026 is deemed as duly filed and served upon payment of the requisite fees.*** 23. ***Each party to meet their own costs.*** **Dated, signed and delivered this 7th day of July, 2026 at Nakuru.** **J. K. SERGON** **JUDGE** **In presence of:** Jamleck/Rutoh C/A Ratemo for the Respondent Macharia holding brief for Mukira for Applicant