https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8075

Mburu v Mugane & another (Civil Appeal E051 of 2025) [2026] KEHC 8075 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8075 (KLR) Republic of Kenya In the High Court at Kitale Civil Appeal E051 of 2025 RK Limo, J June 9, 2026 Between Naomi Njeri Mburu Appellant and Phylis Njeri Mugane 1st Respondent Virginia Wanjiru Gitara 2nd Respondent Ruling 1.The applicant, Naomi Njeri Mburu, has moved this court vide a Notice of Motion dated 24/10/2025 seeking the following reliefs namely;i.That this honourable court be pleased to grant leave to the appellant/applicant to lodge an appeal out of time against judgment delivered on 15/4/2024 in Kitale CMCC No.E112 of 2023.ii.That upon grant of prayer (i) above the memorandum of appeal annexed be deemed duly filed.iii.Cost of the application. 2.The applicant has listed the following grounds namely;a.That the judgment in the lower court was delivered on 15/4/2024.b.That the applicant then instructed one Hayes Odhiambo who misrepresented himself as an advocate.c.That the said Hayes Odhiambo failed to file the appeal and later admitted that he was a pupil and not qualified as an advocate.d.That during the period she was further incapacitated following a road traffic accident on 15/5/2024 which led to her hospitalization and that later she was further incapacitated following her committal to civil jail.e.That despite persistent follow-ups she only discovered in February 2025 that no appeal had been filed prompting her to instruct the current counsel on record.f.That the delay in filing the appeal was not deliberate or out of indolence but occasioned by;i.Deception by a person masquerading as an advocate.ii.Hospitalization and incarceration.iii.Delayed availability of typed judgment.g.That the intended appeal raises weighty issues.h.That the respondent will not suffer prejudice.i.That it is in the interest of justice to grant the applicant a chance to appeal. 3.The applicant has sworn a supporting affidavit reiterating the above grounds. 4.She has exhibited medical or treatment chit showing she was hospitalized at Kitale County Referral Hospital on 15/5/2024 due to road traffic accident. 5.She has also averred that she was committed to civil jail on 20/6/2024 and released on 21/11/2024. 6.That upon release she made a follow up with Hayes Odhiambo who assured her that appeal had been filed and requested his payment. 7.That when she realized she had been duped she reported Hayes Odhiambo to the police and she has exhibited a Police Abstract extract to demonstrate the same. 8.The respondents have opposed this application through a joint replying affidavit sworn on 7/1/2026. 9.They aver that this application is an afterthought and meant to defeat the course of justice or delay their fruits of judgment in Kitale CMCC No.E112 of 2023. 10.They contend that the dealings regarding a person impersonating as an advocate should be left to be dealt with by the police. 11.They express doubts about payments made to the imposter stating that only Kshs.4,620 was paid initially as against Kshs.35,000 which was paid a year later. 12.They contend that the applicant should have been more proactive in following up her case. 13.That the trial court considered whether Kshs.3.2 Million was a loan advanced to the applicant and attracted interests and that the applicant should not be allowed to contest the judgment through the back door. 14.This court has considered this application and the response made. 15.The applicant has invoked wrong provisions of the law in seeking extension of time. She ought to have moved this court under Order 50 Rule 6 of the Civil Procedure Rules, since all she seeks is enlargement of time to appeal against the decision delivered on 15/4/2024 by the Chief Magistrate’s Court. I do not however find the omission fatal because of the provisions of Order 51 Rule 10 of the Civil Procedure Rules. 16.The applicant is seeking the discretion of this court to allow her prefer her appeal out of time. Enlargement of time is a discretional remedy. A party seeking for the exercise of a court’s discretion in her favour should demonstrate good faith, good cause and plausible reasons for delay. 17.I have looked at the reasons to explain delay of about 1 year 5 months. She says she was involved in a road accident almost immediately after the judgment was delivered on 15/4/2024. This court has seen a medical chit dated 15/5/2024 from Kitale County Referral Hospital and finds that the same has not been contested. 18.I also find the reason of being duped by a person masquerading as an advocate to be plausible given that a formal complaint was made to the police to that effect. The respondents’ basis for objections are matters to be canvassed in the intended appeal. 19.On those two grounds coupled with the fact that the intended appeal raises triable issues, this court is persuaded that the applicant deserves a chance to ventilate her appeal. I will allow the application for extension of time. She has 21 days to file and serve her memorandum of appeal. Costs shall be in intended appeal. DELIVERED, DATED AND SIGNED AT KITALE THIS 9TH DAY OF JUNE, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofChemwok for the applicantSituma for the respondentNaomi Njeri the applicantDuke/Chemosop- Court assistants