https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10985

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E043 OF 2026** **VINCENT MWASHI………………………………………………………APPLICANT** **-VERSUS-** **ICEA GENERAL INSURANCE CO. LTD ……………..………….1ST RESPONDENT** **DAVID KIPLIMO…………………………...…………..………….2ND RESPONDENT** **MONICA JEBITOK……………………………………..………….3RD RESPONDENT** **RULING** 1. In the motion dated 13th March, 2026 the Applicant herein sought the following orders;- 2. *That leave do issue to file and serve the Notice and memorandum of appeal out of time as against the judgment issued on 27th January,2026 by Hon. A. Odawo.* 3. *That the Costs of this Application be provided for.* 4. The application is premised on the following grounds; 5. *THAT on the 27th January, 2026 Hon. A. Odawo delivered judgement which the Appellant/Applicant was not satisfied with.* 6. *The Applicant is a victim of a road traffic accident and has been facing financial hardship and was therefore still mobilizing the requisite filing fees necessary to lodge the Appeal.* 7. *That the Applicant has an arguable appeal and is likely to suffer irreparable loss if this Application is disallowed as the Applicant may suffer injustice.* 8. *That in equity and in the interest of justice, the court be pleased to allow the Applicant to file and serve the Notice of Memorandum of Appeal out of time.* 9. The Application is supported by the affidavit sworn by the Learned Counsel for the Applicant on the same date. 10. The Application is opposed by a replying affidavit sworn by the Learned Counsel for the 1st Respondent on 8th May, 2026. It is contended by the 1sr Respondent that the Appellant has not shown sufficient reason for the delay in filing the appeal within time and that the Applicant has not demonstrated exceptional circumstances that prevented him to file the Appeal within time. Thus, the 1st Respondent urges that it is in the interest of justice, fairness and the need for expeditious disposal of case that the instant application be disallowed. **ANALYSIS AND DETERMINATION** 1. I have considered the Application, the affidavits on record, and the submissions of the parties. The main and perhaps the only issue for determination is whether this court should allow the Applicant’s to file the Appeal out of time***.*** 2. The Court vested with discretionary powers to consider, allow or disallow an application seeking leave to file an appeal out time***.*** Relevant matters such but not limited to the reason(s) offered for the delay and whether the delay is inordinate informs how the Court’s will exercise the discretionary powers. 3. The Supreme Court in the case of **NICHOLAS KIPTOO ARAP KORIR SALAT V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 7 OTHERS [2014] EKLR** stated as follows; ***“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek the courts to grant it.*** 1. The Supreme Court in the same case then set out the conditions for extension of time to file an appeal as follows; 2. ***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.*** 3. ***A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court*** 4. ***Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;*** 5. ***Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court.*** 6. ***Whether there will be any prejudice suffered by the respondents if the extension is granted;*** 7. ***Whether the application has been brought without undue delay; and*** 8. ***Whether in certain cases, like election petitions, public interest should be a consideration for extending time.*** 9. Recently, the Court of Appeal in **MAKOKHA & ANOTHER V MBAI & 9 OTHERS [2026] KECA 1223 (KLR)**ablyobserved thus;- ***“The circumstances under which this Court exercises its jurisdiction in extending time are now well settled. These are first the period of the delay; secondly, the reasons for such a delay; thirdly (possibly), whether the proceedings for which time is sought to be extended is frivolous; and fourthly, whether the respondent in those proceedings will be unduly prejudiced if the application were to be granted…Those are the main principles to be considered but the list is not exhaustive and can never be exhaustive as the exercise of discretion by itself demands that the Court should not be restricted in its operations****”* 1. The Court of Appeal in the case of **THUITA MWANGI V. KENYA AIRWAYS LTD. [2003] EKLR**discussed some of the factors that aid courts in exercising discretion whether to extend time to file an appeal out of time, which include the following: 2. The period of delay; 3. The reason for the delay; 4. The arguability of the appeal; 5. The degree of prejudice that could be suffered by the Respondent if the extension is granted; the importance of compliance with time limits to the particular litigation or issue; and 6. The effect, if any, on the administration of justice or public interest, if any, is involved. 7. In the instance application, it is indicative that the Judgement of the Lower Court delivered on 27th January, 2026. The Applicant filed the instant application dated 13th March,2026 on 30th March, 2026. These practically reveals delay of barely one (1) month from the date the default 30 days right of appeal expired. 8. Am of the persuasion that delay in filing the intended appeal of one (1) month does not amount to undue delay in view of the explanation offered by the applicant; that it took more time for the Appellant put his house in order financially before instructing his Counsel to pursue the Appeal. 9. In **MAKOKHA & ANOTHER V MBAI & 9 OTHERS**cited hereinabove G.V. Odunga-JA, as to what amounts to inordinate delay, held;- **“…it is clear that the litmus test for inordinate delay is that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. In other words, in determining whether or not the delay is inordinate, it is not a matter of arithmetic. All the surrounding circumstances, including the reason for the delay must be considered by the Court.”** 1. From the draft Memorandum of Appeal, it is discernable that the intended Appeal raised triable issues. Hence, the Appellant should be afforded a chance to articulate his appeal, the Respondent shall get fair chance to respond to the Appeal before the court can ultimately pronounce itself on the merits of the Appeal. 2. I am therefore inclined to grant the leave to the Applicant to file an appeal out of time in the interest of justice. I have no reason to find that the Respondents will suffer any real prejudice or injustice in allowing this Application. 3. I will allow the application dated 13th March 2026 in the following terms: 1. *Leave is granted to the applicant to file an appeal out of time against the judgment delivered on 27th January 2024 in Kakamega PMCC No. 142 of 2022.* 2. *The applicant is to file and serve his Memorandum of Appeal within fourteen (14) days hereof; and in default, the order (a) above shall automatically vacate.* 3. *The applicant shall bear the cost of the application.* 4. *It is so ordered.* 4. Right of Appeal 30 days explained. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zildah/Velma Parties absent. Court Assistant to upload the Ruling on the CTS forthwith.