Mutai v Tarus & another (Civil Application E076 of 2026) [2026] KECA 1554 (KLR) (31 July 2026) (Ruling)

**IN THE COURT OF APPEAL AT ELDORET** **(CORAM: NDERI, JA. - IN CHAMBERS) CIVIL APPLICATION NO. E076 OF 2026** **BETWEEN** **PATRICK KIPROTICH MUTAI… APPLICANT** **AND** **JOHN KIPNEGTICH TARUS……………..……..…....1ST RESPONDENT NATIONAL TRANSPORT &** **SAFETY AUTHORITY…………………………………..2ND RESPONDENT** *(Being an application for extension of time to file and serve a Notice of Appeal from the decision of the High Court of Kenya at Eldoret (****R.*** ***Nyakundi, J****.) delivered on 31st March, 2026* *in* ***HCCA NO. E039 OF 2024)*** *\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\** **RULING** 1. The Notice of Motion application dated 1st June 2026 seeks extension of time to file and serve the notice of appeal outside the prescribed period against the judgement delivered in Eldoret ***HCCA No. E039 of 2024*** on 31st March 2026. The applicant also seeks other and further orders that the Court deems fit and just to grant. 2. The application is brought under **section 3A** and **3B** of the **Appellate Jurisdiction Act, Rule 4** of the **Court of Appeal** **Rules** and **Article 159** of the Constitution of Kenya. It is premised on the grounds set out on the face of the application and restated in the supporting affidavit of **Patrick Kiprotich Mutai**, the applicant, both dated 1st June 2026. The grounds in support are further buttressed in written submissions by the firm of Cheruiyot Kirui & Co. Advocates dated 16th July 2026. 1. The applicant avers that the impugned judgement was delivered in the absence of the applicant and the 2nd Respondent. It is the applicant’s contention that neither him nor his Advocate were aware or served with a mention or judgement notice. Further, he contends that his counsel stumbled on the 1st respondents’ submissions filed on 4th December 2025 prompting them to file and upload theirs on CTS on 13th April 2026. Additionally, he contends that they only learnt the matter was concluded in favour of the 1st respondent on 4th May 2026 when the judgement was uploaded on CTS. Notably, he contends that the judgement delivered on 31st March 2026 did not consider their submissions which were filed after the same was rendered. The applicant is therefore aggrieved that the appeal proceeded *ex* *parte* despite being aggrieved parties in the appeal. 1. It is the applicant’s submission that the subsequent delay in filing the notice of appeal was due to failure of service of notices by the 1st respondent and the lower court. As a result, the delay was not deliberate. The applicant also avers that the appeal has high chances of success and the respondents will not suffer prejudice if the application is allowed. 2. To address the delay, the applicant submits he has since taken steps including requesting for typed and certified copies of proceedings and judgement. He has annexed a letter dated 11th May 2026 requesting for the same. The applicant relies on the cases of ***Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] eKLR*** and ***Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR*** on factors to consider in granting extension of time. 3. The 1st respondent opposes the application through a replying affidavit sworn by **John Kipngetich Tarus** dated 16th July 2026. He contends that the applicant was served on 30th September 2024 but did not enter any appearance. The 1st respondent also submits that the judgement was on notice because the Judge was on transfer and directions had been issued on delivery of judgment. Additionally, he contends that the claims by the applicant that he was not aware of the directions by the court on filing of submissions on 4th August 2025 is false. The 1st respondent therefore deposes that the application is an afterthought and will prejudice their right to enjoy the fruits of the judgement. The 1st respondent contends that the application is an abuse of court process, the delay is not justified, and the appeal has zero chance of success and should be dismissed with costs. 1. The 2nd respondent has not taken part in this application. 2. Having evaluated the application, the deposition and submissions filed by the parties, the issue for determination is whether time for filing intended appeal out of the prescribed period should be enlarged. 3. The factors to consider for grant of extension of time were crystallized in ***Leo Sila Mutiso vs Rose Hellen Wangari Mwangi [1999] 2 EA 231*** and restated in ***Onduru v Owuor & 2 others [2026] KECA 1405 (KLR)***. The considerations include; the length of delay, the reason for delay, the chances of the appeal succeeding if the appeal is granted and fourth, the degree of prejudice to the respondent if the application is granted. 1. On the first consideration, the judgement was delivered on 31st March 2026, therefore in accordance with **rule 77(2)** of this Court’s rules, the notice of appeal ought to have been lodged on or before 14th April 2026, within fourteen days. The applicant contends that they only learnt judgement was delivered when it was uploaded on the CTS on 4th May 2026, 35 days after the judgement. Subsequently, the applicant made a request for typed proceedings on 11th May 2026, and filed this application on 1st June 2026, 28 days later. This delay is not inordinate and has been sufficiently explained by the applicant 2. On the issue of chances of success of the appeal, it only suffices that the intended appeal is not frivolous. The applicant has attached a draft Memorandum of Appeal dated 1st June 2026 that raises arguable grounds of appeal. 3. Finally, on the aspect of prejudice on the respondents, the 1st respondent argues that they will be prejudiced by the delay in enjoying the fruits of their long-awaited judgement. I am persuaded that the delay shall be remedied by an award of costs, should the applicants appeal be dismissed. On the contrary, the applicant would be denied opportunity to challenge the impugned judgement without any further recourse. As a result, the prejudice likely to be suffered by the 1st respondent is outweighed by the demands of substantive justice for parties to agitate their case on its merits. 4. Accordingly, the time to file Notice of Appeal and Record of Appeal is enlarged. The applicant to file and serve the Record of Appeal within 30 days from the date of this ruling. The costs shall abide the outcome of the intended appeal. **Dated and Delivered at Eldoret on this 31st day of July, 2026.** **NDUMA NDERI** **………………………………** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed.*** ***DEPUTY REGISTRAR***