https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1215

Shieni v Ropiara (Civil Application E055 of 2026) [2026] KECA 1215 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1215 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E055 of 2026 MB Kairaria, JA June 26, 2026 Between Peter Ropiara Shieni Applicant and Mary Wanjiku Ropiara Respondent (Application for extension of time to file and serve the notice of appeal out of time in an intended appeal from the judgement of the High Court of Kenya at Narok [C. Kariuki J] dated 27th March, 2026 in High Court Family Civil Case No. E 001 of 2024[OS]) Ruling 1.By the omnibus notice of motion application dated 16th April 2026, Peter Ropiara Sheini the applicant seeks orders as follows:a.that the applicant be given leave to file and serve his notice of appeal dated 11th April 2026 out of time;b.That in the event that leave is granted and time enlarged as prayed hereinabove ,then the notice of appeal dated 11 April ,2026 be deemed to be properly filed and served on the Respondent in compliance with the rules of this Court;c.That there be a stay of execution of the judgement dated 27th March ,2026 and resultant decree againstthe applicant pending the hearing and determination of the intended appeal; andd.That costs of this application abide the result of the appeal or be dealt with as the justice of the case shall seem to require. 2.The prayer for stay of execution is outside the remit of a single judge of this Court and I will therefore not consider it. The balance of the application is principally for extension of time to file and serve a notice of appeal out of time under Rule 4 of the Court of Appeal Rules 2022 which grants jurisdiction to enlarge time prescribed for doing anything that is required to by the rules on such terms as may be just. It is an exercise of discretion which must be exercised judiciously not whimsically or capriciously taking into account ,the length of the delay, the reason for the delay, possibly the chances of the appeal succeeding and whether the Respondent would be prejudiced if the order sought is granted [ See Leo Sila Mutiso v Rose Hellen Wangari [1999] 2 EA 23 ]. To succeed the applicant must give a plausible and satisfactory explanation for the delay. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, this Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.’’ 3.In his affidavit in support of the motion the applicant avers that he filed the notice of appeal dated 11th April, 2026 on 13th April, 2026 which is two days late considering that the judgment sought to be appealed was delivered on 27th March, 2026. The delay is thus not inordinate. The applicant explanation for the delay is that the judgement was not availed to the advocate immediately after delivery and that there was delay in instructing counsel because of the Easter holidays. 4.The Respondent strenuously opposed the application and filed a replying affidavit in which she asserted that the explanation given for the delay was not reasonable because the applicant was in court at the time when the judgment was given and submitted that the conditions prerequisite for grant of extension had not been met. 5.Upon considering the application, the affidavits and submissions in support and opposition thereto, I am satisfied that the length of the delay is not inordinate and the reason for the delay is both plausible and reasonable. I find that the application for extension of time is merited. 6.Accordingly, I grant prayer 1 and 2 in the notice of motion application dated 16th April, 2026. The Notice of Appeal dated 11th April, 2026 is deemed to be properly filed within the extended period and properly served. The costs of the application shall abide the intended appeal. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.MURUNGI B. KAIRARIA……………………………..JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR