https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10821

Mkala & 2 others v Asunga (Miscellaneous Civil Application E022, E023 & E024 of 2025 (Consolidated)) [2026] KEHC 10821 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10821 (KLR) Republic of Kenya In the High Court at Makueni Miscellaneous Civil Application E022, E023 & E024 of 2025 (Consolidated) TM Matheka, J July 17, 2026 Between Phenny Kina Mkala 1st Applicant Jenipher Wawuda 2nd Applicant Ediger Mwaloi 3rd Applicant and Victor Otieno Asunga Respondent Ruling 1.The Applications for determination are dated 19/02/2025 and were filed under certificate of urgency. They were brought under sections 1A, 1B, 3A, 79G & 95 of the Civil Procedure Act, Order 45 (1) of the Civil Procedure Rules 2010; Article 25(c), 50 (1) of the Constitution of Kenya and all other enabling provisions of the law. They seek the following orders;a.Spent.b.That this honorable court be pleased to grant leave to the Applicants to file an Appeal against the judgment of Hon. L. Wanja Gitari (RM) in Makindu Civil Case No. EO52, E053 and E054 0F 2024 delivered on 23.10.2024 in favor of the Plaintiffs against the Defendant.c.That the draft Memorandum of Appeal annexed hereto be deemed as duly filed.d.That the costs of the application be provided for. 2.The Applications are supported by the grounds on their face and the Applicants’ Affidavits sworn on the same day. The gist of the Applications is that the Applicants intended to appeal against the judgment on liability and instructed their Advocates to proceed but they realized that the same had not be done. That, upon inquiry, they realized that their Advocate, Mr. Brian Motuka, had been blessed with a child and proceeded on paternity leave. Copies of the judgment, letter from the hospital and Memorandum of Appeal are exhibited as PKM-1, 2, 3 respectively. 3.They deponed that failure to file the intended Appeal was not intentional but an innocent and honest mistake. That, mistake of counsel should not be visited on an innocent litigant and that this court is vested with discretionary powers which ought to be exercised judiciously to ensure that justice is not only done but seen to be done. That, they are desirous of pursuing the intended Appeal which raises serious triable issues with a high likelihood of success. 4.That, the Applications were brought as soon as reasonably possible and that 3 months after expiry of the statutory 30 days is not inordinate delay. That, the Respondent stands to suffer no prejudice and if any, the same can be compensated by award of throw away costs The Response 5.The Applications were opposed through the Respondent’s Replying Affidavit sworn on 25/04/2025 wherein he deponed that the Applications are in flagrant violation of well-established legal doctrines and statutory provisions and are devoid of merit. That, they are fatally defective for want of form and law. That, they have been lodged in bad faith and are an abuse of the court process. 6.That, the Applicants have not offered any sufficient explanation for the delay of over three months hence the same is inordinate and unjustified. That, according to information from his advocate, the Applicants’ Advocate actively pursued settlement after delivery of judgment and the same was paid by the insurer on 22/11/2024. That, it is only after receiving and utilizing the judgment sum that the Applicants approached this court seeking extension of time to Appeal, which conduct is dishonest and an abuse of the court process. The payment transaction report is exhibited as VA-1. 7.That, the fact that the Applicants’ Advocate was on paternity leave does not justify the delay because section 29(8) of the Employment Act, Cap 226 Laws of Kenya grants two weeks of paternity leave. That, after delivery of judgment on 24/10/2024, the Applicants’ Advocate continued to actively engage with his (Respondent’s) Advocate up to 26/11/2024, by which time the decretal sum had been fully settled. A bundle of correspondence between the two Advocates is exhibited as VA-2. 8.That, allowing the Applications at this stage is prejudicial to him and will defeat the principles of finality in litigation. That, in the event that this court is inclined to allow the Applications, the Applicants should deposit the security of costs as the full decretal award has already been settled by the insurer. That, such security will safeguard his interests and ensure due performance of any orders that may ultimately be made in the Appeal. 9.The Applications were canvassed through written submissions. The Applicants’ Submissions 10.It was submitted that according to annexture PKM 2(a) & (b), the Applicants’ Advocate’s wife delivered through caesarian delivery but later on, developed surgical site complications. That, the situation took a toll on him both mentally and financially and could not have reasonably been in the right mental frame to pursue an Appeal against the trial Court's judgment. That, it is therefore unreasonable for the Respondent to suggest that the Advocate was only entitled to 2 weeks paternity leave. 11.It was submitted that the firm of Machora Motuka & Company is not a one man show hence the assertions that the Applicants’ advocate was actively engaged in following up settlement is utterly false. That, the firm has other employees and Advocates who can step in when needed hence the numerous letters and emails. That, Mr. Brian Motuka has been in control of the matter and no other Advocate and/or employee of the firm had the authority to sign and/or execute such a crucial document. 12.That, despite resuming normal office duties, the document allegedly termed consent remains unexecuted by the Applicants’ Advocate hence a clear intention that the Advocate had the intention to Appeal against the decision of the trial court. That, the circumstances which befell the Advocate were genuine, reasonable and beyond his control. Reliance was placed inter alia on Njuguna -vs- Wanyoike (ELC Misc. Application E003 of 2024) [2024] KEELC 4372 (KLR) (28 MAY 2024 (Ruling) where the court stated;“25.A glean of the sick sheet annexed in the Applicant's Supporting Affidavit is dated 18/11/2022. That is barely a year before the delivery of the assailed Ruling. A glance of JNN-2 it is evident that subsequent checkups ran through the months of February to December year 2023. Based on the foregoing it is plausible that the Applicant’s claim on illness is founded and established. However, by his own admission, the Applicant is ably represented by counsel who advised him on the right to Appeal. He chose not to heed the advice.26.Was the filing of the Application done inordinately late? The impugned Ruling was delivered on 2/ 11/2023 and the Application was filed on 23/ 1/2024. That is a period of about two and half months later. Considering the Applicant’s plea of illness, I find the delay is not inordinate.” 13.Further reliance was placed on Andrew Kiplagat Chemaringo -vs- Paul Kipkorir Kibet [2018] eKLR where the court stated;“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favor. There has to be valid and clear reasons, upon which discretion can be favorably exercisable. 14.It was submitted that in the event that the court finds favor in the Respondent’s averments, then the Advocate’s misfortunes and/or excusable mistake should not be visited on the Applicants. Reliance was placed inter alia on Belinda Muras & 6 Others -vs- Amos Wainaina (l978) KLR where the court stated;“A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel. Though in the case of junior counsel, court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The court may not condone it but ought certainly to do whatever is necessary to rectify if the interest of justice so dictate.” 15.Further reliance was placed on Tego -vs-Tego (Misc. Civil Application E005 of 2023 [2024) KEHC 1501 (KLR) (8 February 2024) (Ruling) where the court stated;“It is my finding that the Applicant was let down by his former Advocates who failed to file the Appeal within the time granted by the court. I do not think it is proper for the Applicant to be punished for a wrong committed by his former Advocates. I also do not think that the delay of six months in filing the Appeal is inordinate as to cause the Applicant to be denied an opportunity of being heard on Appeal. The Respondent has not shown that the delay has caused him any prejudice in as far as the hearing and determination of the Appeal is concerned. In my view justice can still be done despite the delay. The Respondent can be compensated by way of costs for any delay. I am thereby inclined to allow the Application…” 16.It was submitted that, from the Respondent’s pleadings and submissions; he has not clearly stated the prejudice he will face and/or suffer if the Applicant is afforded an opportunity to Appeal out of time. That, the Respondent clings on finality of litigation but the same is not applicable herein as order 42 of the Civil Procedure rules entitles any litigant who is dissatisfied with a court decision, order and/or judgment to Appeal either part or whole of the court’s decision. That, it is frivolous, ill-conceived and unjust for the Respondent to demand deposit of security for costs because the Application is not one of stay of execution. Reliance was placed on Gianfranco Manenthi & Anor -vs- Africa Merchant Assurance Co. Ltd [2019] eKLR where the court stated;“The Applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under Order 42 Rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the Appeal fails.” The Respondent’s Submissions 17.Reference was made to Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR for the submission that; the considerations for extension of time are; the reason for the delay, the length of the delay, whether the delay is inexcusable, whether the Applicant has an arguable Appeal and whether the grant of extension would prejudice the Respondent. 18.It was submitted that the Application was filed nearly three months later, without any credible or satisfactory explanation for the delay. That, the mere allegation that Counsel for the Applicant was on Paternity leave is not sufficient. Reliance was placed on Nicholas Salat (above) where the Supreme Court stated that;“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court… the whole period of delay should be declared and explained satisfactorily to the Court.” 19.Further reliance was placed on Aviation Cargo Support Limited -vs- St. Mark Freight Services Limited [2014] eKLR where the Court of Appeal stated;“Equity aids the vigilant and not the indolent. The Appellant has not demonstrated to this Court why it took over four months to file the Application for leave... such delay was inordinate and not excusable. 20.It was contended that the Applicant’s conduct after Judgment does not paint a picture of a litigant who had been aggrieved by the Judgment. That, the Applicant, through counsel, actively pursued and received the decretal sum from the Respondent’s insurer on 22/11/2024, without raising any objection or intention to Appeal. 21.It was submitted that allowing the Applications at this stage will undermine the principle of finality in litigation and will also unfairly prejudice the Respondent who has already satisfied the judgment in full. Reliance was placed on Gerald M’limbine -vs- Joseph Kangangi (2009) eKLR where the court stated;“The overriding objective of the Civil Procedure Act is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes...litigation must come to an end.” 22.I have carefully considered the Applications, the Responses and rival submissions. The issue for determination is whether the Applications are merited. Analysis & Determination 23.Section 79G of the Civil Procedure Act provides that: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 to the appellant 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. 24.The proviso implies that an intended Appeal should be in place or be filed together with the Application seeking leave for extension of time to file it. This view is buttressed in Mugo & Others –vs- Wanjiru & Anor [1970] EA 482 where the court stated as follows;“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.” 25.The Applicants herein have attached draft Memorandums of Appeal. These qualify as an intended Appeal for purposes of guiding the court on whether to the grant the orders sought. 26.It is now well settled that the extension of time or its denial is an exercise of discretion by the court as enunciated by the Court of Appeal in Leo Sila Mutiso –vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231 as follows;“It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are, first, the length of the delay, secondly, the reason for the delay, thirdly, possibly, the chances of the Appeal succeeding if the Application is granted, and fourthly, the degree of prejudice to the Respondent if the Application is granted.” 27.The judgments were delivered on 23/10/2024 and these Applications were filed on 24/02/2025, approximately 120 days later. The law requires Appeals from subordinate Courts to the High Court to be filed within 30 days from the date of the decree or order appealed against. After lapse of the statutory period and exclusion of the Christmas period, the delay in this matter is approximately 3 months. 28.The Applicants explained that the delay was caused by the fact that the wife of their Advocate-Mr. Brian Motuka-was blessed with a baby but she developed surgical site complications and that the situation took a toll on the Advocate both mentally and financially and could not have reasonably been in the right mental frame to pursue an Appeal. 29.The Applicants exhibited a letter dated 18/02/2025 from St. Joseph Shelter of Hope which confirms that Ann Nduswe Charity was admitted at the facility with surgical site complications following caesarian section delivery on 14th November to 28th November 2024. The Applicants also exhibited an affidavit sworn by Advocate Motuka confirming that he married Ann Charity Nduswe in the year 2020. It is evident that the Advocate’s wife was pregnant and almost due when the judgment of the trial court was delivered, and it is not unreasonable that Advocate would have been disoriented at the time. 30.Be that as it may, the Applicants deponed that there are other Advocates in the firm of Machora Motuka & Co. Advocates. I find that he explanation that it was only Mr. Motuka who could sign the relevant documents for Appeal does not sound reasonable. In fact, the letter dated 21/11/2024 from the firm of Motuka indicates that it was signed by B.M Motuka himself. 31.The said letter notified the Respondent’s Advocate that the ‘30-day stay of execution was lapsing on or about 23/11/2024 and that execution would proceed if payment was not received by close of business on 23/11/2024.’ 32.Another letter threatening to execute was signed by B.M Motuka himself, two days later, on 23/11/2024. These two letters that were executed by Mr. B.M Motuka himself. These demonstrate that it is not other Advocates in the firm who were following up the issue of payment. If the two letters were signed by other Advocates, then it should have been their names appearing on the letter. Why then could he not sign the documents for the lodging of the appeal? It appears to me that Mr. Motuka was very much active in the matter on 21st and 23rd November 2024 and was even aware of when the stay of execution was lapsing. It is therefore not convincing that Mr. Motuka was not available to sign Memorandums of Appeal on 21st and 23rd November 2024, which dates were actually within the 30-day statutory period for filing Appeals. If Mr. Motuka was aware of the lapse of the 30-day stay of execution, he surely must have been aware of the 30-day lapse of Appeal period that is very clear from the record . 33.The Memorandum of Appeal raises 3 grounds where the Applicants are challenging the apportionment of liability in the ratio of 85:15. According to them, the Respondent should have been found 100% liable. This does not appear to be the kind of legal document that would only be reserved for the signature of Mr. Motuka and no one else. It is not ok that the wife’s situation was brought into this matter as it cannot take away the fact that Mr. Mokua was on the matter at the point when the 30 days were ending and chose not to take the appropriate action/ It does not constitute a sufficient explanation for the delay of 3 months. 34.In addition , it is not disputed that entire decretal award has been settled pursuant to the demands by Mr. Mokua’s firm at the threat of execution. 35.I find that the explanation for the delay is not reasonable, sufficient or satisfactory to warrant the exercise of the discretion of this court. 36.In the circumstances each of the applications is denied with no orders as to costs. RULING DATED SIGNED AND DELIVERED VIRTUALLY THIS 17TH JULY 2026MUMBUA T MATHEKAJUDGEMachora Motuka & Co. AdvocatesRespondent’s AdvocatesM.W Muli & Co. Advocates