https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6845

Mopak Ltd v Kiviu (Suing as Father and Administrator of the Estate of Michael Mutua Mutuku – Deceased) (Civil Appeal E1470 of 2024) [2026] KEHC 6845 (KLR) (Civ) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6845 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1470 of 2024 WA Okwany, J May 14, 2026 Between Mopak Limited Appellant and Zacharia Mutuku Kiviu (Suing as Father and Administrator of the Estate of Michael Mutua Mutuku – Deceased) Respondent Ruling 1.This ruling is in respect to the Respondent/Cross-Appellant’s Notice of Motion dated 15th October 2025 seeking leave to file a Memorandum of Cross-Appeal out of time and for the same to be deemed as duly filed upon payment of requisite court fees. 2.The application is brought under Sections 3A and 95 of the Civil Procedure Act, Order 50 Rule 6, Order 51 Rule 1 and Order 42 Rule 4(1) of the Civil Procedure Rules and all the enabling provisions of the law. 3.The application is supported by the affidavit of Mukami Muthee Advocate. The Appellant opposed the application through a Replying Affidavit and written submissions dated 18th December 2025. 4.The Appellant opposes the application on grounds that the delay has not been sufficiently explained, that the Respondent failed to provide precise timelines of discovery of the alleged error, and that mere blame upon counsel does not automatically warrant exercise of judicial discretion in favour of an applicant. 5.The dispute arises from the judgment delivered in Milimani Civil Case No. 18 of 2019 on 28th November 2024.Dissatisfied with the judgment, the Appellant filed a Memorandum of Appeal dated 13th December 2024 which was served upon the Respondent’s advocates on 29th January 2025. 6.Pursuant to Order 42 Rule 4(1) of the Civil Procedure Rules, the Respondent was required to file a Memorandum of Cross-Appeal within thirty (30) days from the date of service, the period lapsing on or about 28th February 2025. 7.The Respondent/Cross-Appellant contends that although a draft Memorandum of Cross-Appeal had been prepared in time, it was inadvertently filed away in the office physical file without being uploaded onto the court’s digital filing platform. According to counsel, the omission was only discovered during a routine review of the file in preparation for directions in the appeal, whereupon the present application was filed without delay. Analysis and Determination 8.I have carefully considered the pleadings, affidavits and rival submissions, I find that the main issue for determination is whether the Applicant has made out a case for the granting of extension of time to file a Cross-Appeal. 9.Section 95 of the Civil Procedure Act provides that:“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time enlarge such period, even though the period originally fixed or granted may have expired.” 10.Order 50 Rule 6 of the Civil Procedure Rules provides that:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require…” 11.The principles governing extension of time were settled by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] eKLR where the Court held:“1.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;i.A party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court;ii.Whether the Court ought to exercise the discretion to extend time is a consideration to be made on a case to case basis;iii.Whether there is a reasonable reason for the delay, which ought to be explained to the satisfaction of the Court;iv.Whether there will be any prejudice suffered by the respondent if extension is granted;v.Whether the application has been brought without undue delay; andvi.Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.” 12.These principles set out in the above cited case were reiterated by the Court of Appeal in Humphrey M. Mungori & Another vs. Diamond Trust Bank Limited [2023] eKLR. 13.The Court’s discretion to enlarge time is unfettered but must be exercised judiciously and upon sufficient cause being shown. 14.The Respondent/Cross-Appellant attributed the delay to an inadvertent administrative error within counsel’s office, specifically failure to upload the prepared Cross-Appeal onto the digital filing system. 15.The explanation appears at paragraph 6 of the Supporting Affidavit where counsel states:“That however, due to an inadvertent oversight and human error, the prepared Memorandum of Cross-Appeal was mistakenly filed away in the physical client file within our office without being duly uploaded and filed on the court’s digital platform.” 16.The Appellant submitted that no precise timelines were furnished regarding discovery of the omission and that the Respondent cannot simply shift blame to counsel. Reliance was placed on Laban Owino Ochieng vs. Awanad Enterprises Limited & 2 Others [2025] eKLR, where the Court observed:“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.” 17.This Court fully agrees with the foregoing principles. Parties must indeed demonstrate vigilance in prosecution of their matters. However, each case must turn on its own peculiar facts. 18.Unlike the circumstances in the authorities that the Appellant relied upon where the delay was prolonged and largely unexplained, the present application discloses that the intended Cross-Appeal had already been prepared and that the omission was procedural in nature as it involved failure to upload the document to the digital filing platform. 19.The Court must therefore determine whether such omission constitutes sufficient cause. In Philip Chemwolo & Another vs. Augustine Kubende [1982-88] KAR 103, where Apaloo JA stated:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merits.” 20.Similarly, in Belinda Murai & Others vs. Amos Wainaina [1979] eKLR, Madan J.A. observed:“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of junior counsel the court might feel compassionate more readily.” 21.In the present case, I am persuaded that the omission herein was an excusable administrative error and not deliberate indolence or abuse of the process of the Court. 22.I further note that the intended Cross-Appeal raises arguable issues as the Respondent/Cross-Appellant contends that the trial court failed to award damages for lost years as specifically pleaded and instead awarded damages for loss of dependency which, according to the Respondent, had neither been pleaded nor submitted upon. 23.It is my finding that whether the trial court erred in assessment of damages and whether the award departed from the pleadings are substantial questions deserving ventilation before the appellate court. 24.In Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLR the Court of Appeal stated:“The parties are bound by their pleadings and the court itself is bound by the issues arising from the pleadings.” 25.My take is that the intended Cross-Appeal cannot be termed as frivolous and further, the extension of time to file the Cross-Appeal would not occasion prejudice to any party since the appeal itself is still pending before this court. 26.My view is that allowing the Cross-Appeal would facilitate comprehensive adjudication of all issues arising from the same judgment in a single appellate process. Moreover, no irreparable prejudice that cannot be compensated by costs has been demonstrated by the Appellant. 27.Conversely, refusal to grant leave would permanently shut out the Respondent/Cross-Appellant from canvassing grievances arising from the same judgment. I am guided by Article 159(2)(d) of the Constitution which provides that justice shall be administered without undue regard to procedural technicalities. 28.The Court is equally guided by the provisions of Sections 1A and 1B of the Civil Procedure Act on the overriding objective which obligates courts to facilitate just, expeditious, proportionate and affordable resolution of disputes. 29.In the circumstances of this case, substantive justice tilts in favour of hearing the intended Cross-Appeal on merits. 30.Consequently, the Notice of Motion dated 15th October 2025 is hereby allowed on the following terms:a.Leave is hereby granted to the Respondent/Cross-Appellant to file and serve the Memorandum of Cross-Appeal out of time.b.The draft Memorandum of Cross-Appeal annexed to the application shall be deemed as duly filed upon payment of requisite court fees within seven (7) days from the date hereof.c.The Appellant shall have leave to file a supplementary record and/or response to the Cross-Appeal within fourteen (14) days of service.d.Costs of the application shall abide the outcome of the appeal and cross-appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026.HON W. A. OKWANYJUDGEIn the presence ofNgome for AppellantMukami for Respondent/ApplicantAbdirzak - Court Assistant