https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1113

Mutua (t/a Dream Life Products Enterprises) & another v Jones (Civil Appeal (Application) E686 of 2025) [2026] KECA 1113 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1113 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E686 of 2025 S ole Kantai, JA June 12, 2026 Between Pauline Muthengi Mutua (T/A Dream Life Products Enterprises) 1st Applicant Moses Safari Mutua (T/A Dream Life Products Enterprises) 2nd Applicant and Louis Jones Respondent (Being an application for extension of time to file and serve the Notice of Appeal against the Judgment and Decree of the High Court at Machakos (M.W. Muigai, J.) delivered on 19th August, 2020 in H.C. Civil Appeal No. E001 of 2020) Ruling 1.The applicants Paul Muthengi Mutua and Moses Safari Mutua (both trading as Life Products Enterprises) bring this Motion under rule 4 of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 of the Constitution of Kenya, 2010 praying that the Court be pleased to extend or enlarge time within which they may serve Notice of Appeal and letter requesting proceedings; that record of appeal in Civil Appeal No. E686 of 2025 which was struck out on 6th March, 2026 be reinstated and be deemed as properly filed within time or they be allowed to file a fresh record of appeal. In grounds in support of the Motion and in supporting affidavits of Paul Muthengi Mutua and two advocates Agnes Wairimu Njoroge and Pius Mutuku Mbithuka it is said that the applicants are dissatisfied with the judgment and decree of the High Court rendered on 19th August, 2020 and have filed an arguable appeal; that leave to appeal out of time was granted; that notice of appeal was filed but was not served within time through inadvertence; that record of appeal was struck out on application by the respondent; that the applicants were not aware that a necessary step in the proceedings had not been taken by their previous advocates. The applicants’ lawyer Agnes Wairimu Njoroge says in her supporting affidavit that she took over the matter where she was not on record for the applicants in the High Court; that she filed an appeal; that the applicants were not aware by the time they instructed her that necessary steps in the proceedings had not been taken; that not taking necessary steps in the proceedings was through inadvertent mistake. 2.Lawyer Pius Mutuku Mbithuka in a supporting affidavit says that he was prevented from filing documents for appeal on time due to technical hitches and what he calls “personal tragedies” involving the death of his daughter and his being hospitalized for a considerable period of time. 3.Paul Muthengi Mutua says that the applicants filed notice of appeal on time and letter bespeaking proceedings was duly issued but was not served on the respondent due to an inadvertent mistake; that record of appeal was struck out on application by the respondent; that the applicants want to pursue an appeal. 4.The respondent (Louis Jones) in a replying affidavit says that record of appeal was struck out upon his application; that there is unexplained delay since the judgment of the High Court; that the applicants did not attend delivery of judgment; that the application has no merit and should be dismissed. 5.Before me is an application for extension of time to file an appeal. Contrary to what the respondent says, I do have jurisdiction under rule 4 of our rules to entertain the application. 6.The principles to be considered in an application of this nature were well set out in the oft-cited case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997 states 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 stated 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." 7.I note that judgment was delivered by the High Court of Kenya at Machakos on 16th February, 2023. There are documents attached to the application showing that the applicants filed notice of appeal and issued a letter bespeaking proceedings. The notice of appeal was not served on the respondent as required and the letter bespeaking proceedings was not copied to the respondent as required. Consequently the respondent successfully applied for record of appeal to be struck out. The applicants have been vigilant all along in pursuing an appeal. Their previous lawyer says in one of the supporting affidavit that he suffered personal misfortune where he lost his daughter and was himself involved in a traffic road accident leading to his hospitalization for a considerable period of time where he was not able to follow up on matters pending in court. I have noted the period spent in litigation where the respondent applied for striking out of record of appeal. I do not think that there has been unreasonable delay. Looking at the judgment of the High Court I think there can be an arguable appeal. 8.I am satisfied that the applicants are entitled to my exercise of discretion in their favour. I allow the appeal. Let the notice of appeal be served within seven (7) days of today and record of appeal be filed within fourteen (14) days thereafter. Costs of the Motion will be in the appeal. DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE, 2026S. OLE KANTAI…………… JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR