https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10926

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **MISCELLANEOUS APPLICATION NO E192 OF 2025** **MRAMINA LIMITED ……..………..…………..…..……………………………….APPLICANT** **VERSUS** **MWAMBOGO TUVA………...……………………………….........................1ST RESPONDENT** **LILIAN DAMA MGANA..…...……………………………….........................2ND RESPONDENT** **CHARLES MWAMBOGO KAZUNGU.…………………….........................3RD RESPONDENT** **MKONDONI DISABLES SELF HELP GROUP…………….........................4TH RESPONDENT** **RULING** 1. In an application dated 3.12.25, the Applicant seeks leave to appeal out of time against the ruling delivered on 29.1.25 Malindi SCCCMM E151 of 2024. 2. The Applicant averred that the delay in filing the appeal was occasioned by a delay in obtaining certified proceedings which its advocate had *vide* a letter dated 29.1.25 applied for. The Applicant stated that despite diligent follow up, the said proceedings were not supplied within the statutory 30 days, making it impossible to lodge the appeal within time. Further, that the memorandum of appeal raises arguable grounds with high chances of success and that the Applicant stands to suffer prejudice if the appeal is not heard on merit while the Respondents will suffer no prejudice if time is extended. The Applicant stated that the proceedings had been received and that the record of appeal is ready to be filed once leave is granted. 3. The 1st Respondent opposed the Application *vide* a replying affidavit sworn on 9.2.26. He averred that the application for proceedings were made after an inordinate delay of 15 days after the judgment was delivered and no efforts of follow up of the same have been demonstrated. Further, that the Applicant did not require the proceedings to file the memorandum of appeal on time; that the memorandum of appeal does not disclose any arguable grounds that could succeed. It was contended that the Application is an abuse of the court process and is intended to deny the Respondents the fruits of their judgment. 4. The statutory period for filing an appeal in this Court from a subordinate Court is 30 days. This is stipulated in Section 79G of the Civil Procedure Act which provides: ***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.*** 1. The *proviso* to Section 79G of the Act allows a party who gets caught up and is unable to file an appeal within the stipulated period, to seek extension of time. Such party must however satisfy the Court that there is good and sufficient cause for not filing the appeal on time. 1. An order for extension of the time to file an appeal is discretionary. It is an equitable remedy and not a right of a party. (See **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR**). 2. On the principles that a court should consider in the exercise of its discretion in an application for extension of time, the Court of Appeal in **Omar Shurie v Marian Rashe Yafar [2020] eKLR**, stated: ***[B]ut this Court has over the years devised appropriate principles to be applied in achieving a ‘*just*’ decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 is the*locus classicus*which laid down the parameters as follows:*** **“It is now well settled that the decision whether or not to extend the 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.”** 1. The impugned decision emanates from the Small Claims Court. It is trite that the objective of the Small Claims Courts is to ensure that disputes are resolved in timely, cost effective, and simplified resolution of disputes. Indeed Section 34(1) of the Small Claims Court Act provides that all proceedings before the court shall so far as is practicable be heard and determined on the same day or on a day to day basis until final determination of the matter which shall be within sixty days from the date of filing the claim. 2. The impugned decision is dated 29.1.25. By dint of Section 79G of the Civil Procedure Act, the appeal ought to have been filed by 29.2.25. The instant Application was filed on 18.12.25 a delay of about 10 months. Applying the principles set out in **Leo Sila Mutiso** and noting that the impugned ruling is from the Small Claims Court, the Court finds that the delay in filing the Application and draft memorandum of appeal was inordinate. 3. As regards the reason for delay in filing the appeal, the Applicant states that the proceedings were not supplied within time, thereby preventing the Applicant from filing the appeal within the prescribed time. 4. It is quite possible for a party aggrieved by a decision of a court to file a memorandum of appeal before obtaining the typed proceedings. It is indeed prudent to file the memorandum of appeal as the proceedings are awaited, to avoid missing the prescribed deadline. In the present case, there is no demonstration of any efforts made by the Applicant to follow up on the proceedings. I thus find that the reason for delay is not a good and sufficient cause, as contemplated in Section 79G of the Civil Procedure Act, for not filing the appeal in time. 5. The inordinate delay and insufficient reasons for the delay, render the Applicant undeserving of the exercise of the Court’s discretion in its favour. I accordingly find and hold that the Application lacks merit and the same is dismissed with costs to the Respondents. **DATED, SIGNED and DELIVERED in MALINDI this 17th day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**