https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11662

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **MISC. APPLICATION NO. E307 OF 2024** **MOGO AUTO LIMITED………………………APPELLANT/APPLICANT** **-VERSUS-** **BONFACE KAGEMA NJOGU……………………..……….RESPONDENT** *(Being an Application for extension of time to file a Notice and Record of Appeal out of time in an intended appeal from the judgment of the Small Claims Court in Milimani SCCCOM E5470 OF 2022 delivered on 25th August, 2022 by Hon. D.S Aswani)* **RULING** **Introduction** 1. Before this Court is the Notice of Motion dated 15th April 2024 brought by the Intended Appellant/Applicant seeking principally leave to appeal out of time against the Judgment and Decree delivered on 24th August 2023 in **Milimani Small Claims Commercial Case No. E5470 of 2022**. The application is expressed to be brought under **Section 1A, 3A, 3B and 79G of the Civil Procedure Act** and all other enabling provisions governing enlargement of time and is supported by the affidavit of **Erick Omondi Onditi**, a Legal Officer of the Applicant. 2. The Applicant seeks the following orders: 3. ***That this application be certified urgent and be heard ex parte in the first instance.*** 4. ***That leave be granted to the Applicant to appeal against the Judgment and Decree delivered on 24th August 2023 in Milimani Small Claims Commercial Case No. E5470 of 2022 out of time.*** 5. ***That the costs of this application be provided for.*** **Applicant's Case** 1. The application is premised on the grounds appearing on its face and the Supporting Affidavit sworn by Erick Omondi Onditi. 2. The Applicant depones that judgment was delivered by the Small Claims Court on 24th August 2023 dismissing its claim against the Respondent without an award of costs. 3. It is the Applicant's case that its former advocates on record failed to keep it informed of the progress of the proceedings and did not notify it that judgment had been delivered. Consequently, believing that no suit had been concluded, the Applicant instructed new advocates who proceeded to institute **Milimani Commercial Case No. E8454 of 2023**. 4. According to the Applicant, it was only after the Respondent was served with the latter suit that the Respondent informed it that the dispute had already been heard and determined in the earlier proceedings. Upon making inquiries, the Applicant discovered that its former advocates had filed, prosecuted and concluded the previous suit without adequately communicating the developments to it. 5. The Applicant states that the subsequent suit was withdrawn on 6th November 2023 after discovering the existence of the earlier judgment. It further avers that upon obtaining a copy of the judgment on 20th January 2024, it appreciated the reasoning of the trial court and became dissatisfied with the findings, prompting the present application. 6. The Applicant maintains that the delay was neither deliberate nor inordinate but was occasioned by the failure of its previous advocates to keep it informed of the proceedings. It further contends that unless leave is granted, it will be denied an opportunity to challenge the impugned judgment, thereby suffering substantial prejudice. It adds that the Respondent will not suffer any prejudice incapable of compensation by an award of costs if the application is allowed. **Respondent's Response** 1. The application is opposed through the Replying Affidavit sworn on 14th November 2024 by the Respondent. 2. The Respondent contends that the application has been brought after inordinate and unexplained delay. He argues that the explanation advanced by the Applicant, that its advocates failed to communicate the outcome of the case, is insufficient and merely demonstrates indolence on the part of both the Applicant and its previous advocates. 3. The Respondent further depones that the Applicant had every opportunity to monitor the progress of its case, particularly in the era of the Judiciary's electronic case tracking systems. In his view, a diligent litigant ought to have made reasonable inquiries regarding the status of its suit instead of remaining inactive for several months. 4. The Respondent points out that judgment was delivered on 24th August 2023 and that the Applicant admits discovering the existence of the judgment after filing a second suit which it withdrew on 6th November 2023. Despite that discovery, the Applicant allegedly waited until 20th January 2024 to obtain a copy of the judgment and thereafter took nearly three additional months before filing the present application on 15th April 2024. 5. According to the Respondent, the entire period of delay remains unexplained and demonstrates a lack of diligence. He contends that the delay is attributable solely to the Applicant's own inaction and cannot properly be blamed on its former advocates. 6. The Respondent further avers that he has expended considerable time and resources defending the original suit, which was determined in his favour, and that reopening the litigation would occasion him unnecessary prejudice contrary to the principle of finality of litigation. 7. It is therefore urged that this Court should exercise its discretion cautiously and decline to enlarge time where no sufficient explanation has been offered for the prolonged delay. **Submissions** 1. The application was canvassed by way of written submissions. 2. The Applicant filed submissions dated 13th January 2025 reiterating the factual background of the application and maintaining that communication challenges between it and its former advocates substantially contributed to the delay. It submits that upon receiving a copy of the judgment on 20th January 2024, it moved the Court by filing the present application and that the delay was neither deliberate nor inordinate. 3. In support of its position, the Applicant relies on the decision of the Court of Appeal in **Reuben M. Muli t/a Konza Merchants V Keshra Vishra t/a Alpesh Enterprises**, where the Court reiterated that the discretion to enlarge time is unfettered but must be exercised judicially upon consideration of all relevant factors. 4. The Respondent equally filed written submissions urging the Court to dismiss the application on the basis that the Applicant failed to account satisfactorily for every period of delay and had not demonstrated sufficient cause to warrant the exercise of the Court's discretion. **Issue for Determination** 1. Having carefully considered the Motion, the affidavits on record, the rival submissions and the applicable law, in my view the sole issue falling for determination is: **Whether the Applicant has established sufficient cause to warrant the exercise of this Court's discretion to grant leave to appeal out of time against the Judgment delivered on 24th August 2023.** 1. The foregoing issue shall now be considered. **Analysis and Determination** 1. The jurisdiction of this Court to admit an appeal out of time from a subordinate court is donated by **Section 79G of the Civil Procedure Act**, which provides that every appeal shall be filed within thirty days from the date of the decree or order appealed against. The proviso thereto empowers the Court to admit an appeal out of time if the appellant satisfies the Court that he or she had good and sufficient cause for not filing the appeal within the prescribed period. 2. It is now settled that the power to enlarge time is discretionary. Like all judicial discretion, however, it must be exercised judiciously, on sound legal principles and not arbitrarily. The discretion is intended to advance substantive justice while at the same time safeguarding the principle of finality in litigation. 3. The guiding principles applicable to applications of this nature have been authoritatively settled by the Supreme Court in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others*** [2014] eKLR. The Court held that extension of time is not a right of a litigant but an equitable remedy available only to a deserving party. The applicant bears the burden of laying before the Court a satisfactory basis upon which the discretion should be exercised. Among the relevant considerations are the length of the delay, the reason for the delay, whether the application has been brought without undue delay, the degree of prejudice likely to be occasioned to the respondent and, where appropriate, the public interest. 4. Those principles are consistent with the earlier decision of the Court of Appeal in ***Leo Sila Mutiso v Rose Hellen Wangari Mwangi*** [1999] eKLR, where the Court held that in determining whether to enlarge time, the Court should consider the length of the delay, the explanation offered, the arguability of the intended appeal and the degree of prejudice to the respondent if time is extended. 5. The Court of Appeal reaffirmed the foregoing principles in ***County Executive of Kisumu v County Government of Kisumu & 8 Others*** [2017] eKLR, emphasizing that no single factor is decisive and that each application must be determined on its own peculiar facts with the overarching objective of achieving substantive justice. 6. Consequently, the question before this Court is not merely whether there was delay, but whether the delay has been satisfactorily explained so as to warrant the exercise of the Court's equitable discretion. 7. There is no dispute that the impugned judgment was delivered on **24th August 2023**, whereas the present application was filed on **15th April 2024**. On the face of it, the delay is substantial and therefore calls for a credible, satisfactory and candid explanation. 8. The Applicant attributes the delay to the failure of its former advocates to communicate the progress of the matter and to notify it that judgment had been delivered. It contends that it only became aware of the existence of the judgment after filing a subsequent suit, which prompted further inquiries and ultimately led to the withdrawal of that suit before obtaining a copy of the judgment. 9. The Respondent, on the other hand, submits that the explanation is inadequate. He argues that the Applicant failed to monitor the progress of its own case and that the chronology presented reveals prolonged periods of inactivity which remain unexplained. 10. The law is settled that a litigant should not invariably be punished for every mistake committed by counsel. In ***Philip Chemwolo & Another v Augustine Kubende*** **[1982–1988] KAR 103**, the Court observed that blunders will continue to be made by advocates and that, where justice can still be done without occasioning undue prejudice, such mistakes should not automatically lock a litigant out of the seat of justice. 11. That principle, however, is not absolute. The Court of Appeal in ***Bi-Mach Engineers Limited v James Kahoro Mwangi* [2011] eKLR** cautioned that the mistake of an advocate is not a universal passport for extension of time. A litigant is equally expected to demonstrate diligence in following up his or her case, and where the conduct of both the advocate and the client depicts prolonged indolence, the Court is entitled to decline the exercise of its discretion. 12. Similarly, in ***Habo Agencies Limited v Wilfred Odhiambo Musingo* [2015] eKLR**, the Court of Appeal emphasized that while a litigant may not be blamed for every omission of counsel, a party cannot entirely abdicate responsibility for the conduct of its own case. Litigation belongs to the litigant, who bears the ultimate obligation of taking reasonable steps to monitor its progress. 13. Applying those principles to the present application, this Court accepts that communication between a litigant and its advocate may at times break down and that such failure may constitute sufficient cause in an appropriate case. Nevertheless, the Court must interrogate the entire chronology to determine whether the explanation accounts for the whole period of delay. 14. The Applicant states that it became aware of the earlier proceedings after filing **Milimani Commercial Case No. E8454 of 2023**, whereupon that suit was withdrawn on **6th November 2023**. Yet, despite having discovered by that date that judgment had already been delivered, the Applicant did not obtain a copy of the judgment until **20th January 2024**, a period of over two months. No satisfactory explanation has been offered for that interval. 15. More significantly, even after obtaining the judgment on **20th January 2024**, the Applicant waited until **15th April 2024** before filing the present application. Apart from the general assertion that it was considering the judgment and instructing counsel, no evidence has been placed before the Court to explain why nearly three additional months elapsed before moving the Court. 16. The Supreme Court in ***Nicholas Kiptoo Arap Korir Salat* (Supra)** underscored that an applicant must satisfactorily explain the entire period of delay. A court cannot exercise its discretion in favour of an applicant who leaves significant periods of inactivity unexplained. The explanation must be reasonable, plausible and supported by the material placed before the Court. 17. While this Court is sympathetic to the Applicant's complaint regarding the conduct of its previous advocates, the material before Court demonstrates that even after the Applicant became aware of the judgment, there remained substantial periods of inaction for which no satisfactory explanation has been offered. The delay therefore cannot be attributed solely to counsel. 18. The Court must also bear in mind that litigation ought to come to an end. Successful litigants are entitled to enjoy the fruits of judgments lawfully obtained without being subjected to unnecessary and unexplained delays. This principle has repeatedly been affirmed by the superior courts and remains an important consideration when exercising judicial discretion. 19. Accordingly, the explanation advanced by the Applicant must be weighed alongside the unexplained periods of inactivity and the prejudice likely to be occasioned to the Respondent, who has had judgment in his favour since **24th August 2023**. 20. The Applicant has further contended that it has an arguable appeal and that unless leave is granted, it will be denied the opportunity to challenge the judgment of the Small Claims Court on appeal. Although the merits of the intended appeal are not for determination at this stage, the Court is entitled to satisfy itself that the intended appeal is not frivolous. 21. Upon considering the draft Memorandum of Appeal and the grounds set out in support of the application, I am satisfied that the intended appeal raises bona fide issues deserving consideration by the appellate court. Whether those grounds will ultimately succeed is a matter reserved for the hearing of the appeal. At this stage, it suffices that the intended appeal is not idle or plainly unarguable. 22. The Respondent has urged the Court to find that the Applicant was indolent and failed to diligently follow up its case. Indeed, the chronology presented reveals periods of delay, particularly after the Applicant became aware that judgment had been delivered. Ordinarily, such delay would weigh heavily against an applicant seeking the Court's equitable discretion. 23. However, judicial discretion under **Section 79G of the Civil Procedure Act** is intended to serve the ends of justice and must be exercised on a case-by-case basis. As the Supreme Court observed in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others*** **(supra**), extension of time is an equitable remedy dependent on the circumstances of each case, and the Court must consider all relevant factors before arriving at a just determination. 24. The material before the Court demonstrates that the Applicant was not aware that its former advocates had prosecuted the suit to conclusion and that judgment had been delivered. That position is corroborated by the Applicant's institution of a second suit over the same subject matter, a step which would have served no purpose had it been aware that the earlier suit had already been heard and determined. It was only upon being confronted with the existence of the earlier proceedings by the Respondent that the Applicant commenced inquiries, withdrew the subsequent suit and sought to obtain a copy of the judgment. 25. While the Applicant cannot wholly escape blame for not making earlier inquiries regarding the progress of its case, the Court is persuaded that the predominant cause of the delay arose from the evident breakdown in communication between the Applicant and its former advocates. Courts have consistently held that, where the interests of justice so demand, a litigant should not invariably be driven from the seat of justice solely on account of counsel's mistake. 26. In ***Philip Chemwolo & Another v Augustine Kubende*** **[1982–1988] KAR 103**, the Court of Appeal aptly observed that blunders will continue to be made and that unless there is fraud or intention to overreach, errors of counsel should not necessarily deprive a litigant of the opportunity to have his case determined on its merits. Likewise, in ***Belinda Murai & 9 Others v Amos Wainaina*** **[1979] eKLR**, Madan J.A. famously stated that a mistake is a mistake and should not necessarily shut the door of justice because it has been committed by a person of experience. 27. This Court is alive to the equally important principle that litigation must come to an end and that successful litigants are entitled to enjoy the fruits of their judgments. Nevertheless, the right of appeal is a substantive statutory right, and where a satisfactory explanation is offered and no irreparable prejudice will be occasioned to the opposing party, the Court ought, where appropriate, to lean in favour of sustaining rather than terminating litigation without a hearing on the merits. 28. The Respondent has asserted that he will suffer prejudice if the application is allowed. While I appreciate that the Respondent has expended time and resources defending the suit and the present application, I am not persuaded that such prejudice is incapable of being compensated by an appropriate award of costs. On the other hand, denying the Applicant an opportunity to ventilate its grievances on appeal would permanently shut it out from exercising a statutory right of appeal. 29. The Court of Appeal in ***Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 Others* [2013] eKLR** emphasized that the right to be heard is a cornerstone of the administration of justice and that, where possible, disputes should be determined on their merits rather than on procedural defaults. That principle resonates with the constitutional values embodied in **Articles 48, 50 and 159 of the Constitution**, which oblige courts to facilitate access to justice while ensuring that justice is administered fairly and proportionately. 30. Taking into account the length of the delay, the explanation tendered, the circumstances under which the Applicant became aware of the judgment, the Viability of the intended appeal, the absence of prejudice incapable of compensation by costs and the overarching objective of determining disputes on their merits, I am persuaded that this is a proper case for the exercise of this Court's discretion under **Section 79G of the Civil Procedure Act.** 31. Nevertheless, the Court cannot overlook the delay exhibited after the Applicant became aware of the existence of the judgment. That delay, though not sufficient to disentitle the Applicant to relief altogether, must attract appropriate terms. It is therefore just that leave be granted subject to conditions that safeguard the Respondent's interests and ensure the expeditious prosecution of the intended appeal. 32. In the circumstances, I find that the Applicant has established sufficient cause to warrant the enlargement of time and that the interests of justice would be better served by allowing the Applicant an opportunity to ventilate its intended appeal on the merits, subject to appropriate conditions to prevent further delay. **Disposition** 1. Having carefully considered the Notice of Motion dated 15th April 2024, the affidavits on record, the rival submissions by the parties, the applicable law and the authorities cited, I am persuaded that this is a proper case for the exercise of this Court's discretion under **Section 79G of the Civil Procedure Act.** 2. Although the delay in filing the intended appeal was not insignificant, I am satisfied that the Applicant has furnished a plausible explanation for the delay, particularly regarding the lack of communication by its former advocates concerning the progress and ultimate determination of the suit. While the Applicant ought to have exercised greater diligence in following up its case, the circumstances disclosed do not, in my view, warrant shutting it out from pursuing its statutory right of appeal. 3. This Court is guided by the principle that, wherever reasonably possible, disputes ought to be determined on their merits rather than on procedural lapses. As was stated by the Supreme Court in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others*** **(supra),** the Court's discretion to extend time exists to enable it to do justice in deserving cases, taking into account all the relevant circumstances. Equally, the Court bears in mind the need to uphold the principle of finality in litigation and to protect the successful litigant from unnecessary prejudice. 4. In order to balance these competing considerations, I am of the view that the interests of justice will be adequately served by granting leave to appeal out of time on terms that ensure the intended appeal is prosecuted expeditiously and without further delay. 5. Consequently, the Notice of Motion dated 15th April 2024 is allowed on the following conditions: 6. ***Leave is hereby granted to the Applicant to file and serve an appeal against the Judgment and Decree delivered on 24th August 2023 in Milimani SCCCOM No. E5470 of 2022 out of time.*** 7. ***The Memorandum of Appeal shall be filed and served within fourteen (14) days from the date of this Ruling.*** 8. ***The Record of Appeal shall thereafter be filed and served within sixty (60) days of filing the Memorandum of Appeal, unless otherwise directed by the Deputy Registrar or the Court.*** 9. ***In default of compliance with either order (b) or (c) above, the leave hereby granted shall automatically lapse without the necessity of any further order of the Court.*** 10. ***As the delay giving rise to the present application was substantially occasioned by the Applicant's failure to diligently monitor the progress of its case, notwithstanding the shortcomings of its former advocates, the Applicant shall pay the Respondent the costs of this application.*** 11. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2026.** **HON. L. P. KASSAN** **JUDGE**