https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10780

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E443 OF 2024** **CORNEL AMOTH RASANGA......................................... 1ST APPELLANT** **LEONARD OKANDA ……………………….…………….. 2ND APPELLANT** **VERSUS** **SAMUEL OCHIENG OKELLO……...…………….…..….. 1ST RESPONDENT** **HELLEN WAHONYA OKELLO ……….………..…..…… 2ND RESPONDENT** **FRASAM INVESTMENTS LTD. ………………...………. 3RD RESPONDENT** ***(Being an Appeal from the Judgment of Hon. V. W. Mochache (Adjudicator) delivered on 26th January 2024 at Milimani SCCOMM No. E6202 of 2023)*** **RULING** **Introduction** 1. This appeal arises from the Judgment of the Small Claims Court at Milimani (***V.M. Mochache, Adjudicator***) delivered on 26th January 2024 in SCCCOMM No. E602 of 2024. 2. The respondents alleged that the appellants contracted them to ghostwrite, edit, design and publish the 1st appellant’s (then Governor of Siaya County) book *No Greater Honor*. The 2nd appellant was contracted to execute an agreement in this connection on behalf of the 1st appellant. The respondents alleged that they discharged their obligations under the contract but the appellants declined to pay as per the contract. Consequently, the respondents filed the statement of claim amended on 8th September 2023 for recovery of Kshs. 590,000/- damages for breach of contract and costs. 3. In their response dated 30th August 2023, the appellants disputed the claim stating that the 1st appellant did not authorize the 2nd appellant to enter any contract on his behalf. 4. By a Judgment delivered on 26th January 2024, the trial court delineated 2 issues for determination. On *whether there was a valid contract between the parties*, the trial court held that having pleaded vitiating factors, the appellants bore the burden of proof under Sections 107 and 109 of the Evidence Act, which they failed to discharge. In upholding the contract, the learned Magistrate held that being the 1st appellant’s legal advisor, it was unbelievable that the 2nd appellant executed a contract whose contents he did not appreciate. 5. Further, the trial court found that the respondents had established that the 2nd appellant acted on behalf of the 1st appellant, as evidenced by correspondence exchanged and his role in negotiating the terms of the contract. The court also found that he held himself out as having authority to bind the 1st appellant. 6. As to *whether the respondents were entitled to the reliefs sought*, the learned trial Magistrate found that the respondents were entitled to Kshs. 500,000/= and costs of the suit. The appellants were granted 30 days’ stay of execution. **The Appeal** 1. Aggrieved, the appellants filed a Memorandum of Appeal dated 3rd April 2024 raising several grounds of appeal, which can be summarized as follows, the trial court erred: 1. *In failing to find that a contract founded on fraudulent misrepresentation and undue influence is technically vitiated and therefore unenforceable under the law.* 2. *In failing to find that the 2nd appellant could not, by his conduct, legally bind the 1st appellant.* 3. *In failing to uphold the doctrine of privity of contract.* 4. *In failing to find that the contract failed to meet the essential elements of a contract.* 5. *In failing to find that the contract was vitiated by false representation (sic).* 2. The appellants consequently urge this Court to allow the appeal and set aside the trial court’s Judgment. 3. The respondent filed a response to appeal dated 18th March 2025 opposing the same on the grounds that it is vexatious and frivolous. Further, it was contended that the appeal raises questions of fact contrary to Section 38 of the Small Claims Court Act, was filed out of time without leave, and introduces issues of fraud that were not pleaded before the trial court. 4. Parties have filed their respective submissions: the appellants’ dated 25th April 2025 and supplementary submissions dated 26th September 2025, and the respondents’ dated 6th May 2025. 5. The issue falling for determination in this ruling is whether the appeal is competently before this Court. To this end, the respondents challenge that the appeal was filed out of time and without leave, and hence incompetent. As for the appellants, they reiterate that the Judgment was uploaded on CTS on 20th March 2024, a memorandum of appeal filed on 3rd April 2024. In their view, this delay is attributable to the court registry. They also rely on Sections 3A and 79G of the Civil Procedure Act for the proposition that they have demonstrable grounds for filing the appeal out of time. Furthermore, they argue that the issue of competency of the appeal cannot be raised at this substantive stage. **The Application dated 6th October 2025** 1. Shortly thereafter, the appellants filed an application dated 6th October 2025 seeking for the admission of their Memorandum of Appeal out of time on the grounds already established elsewhere in this Ruling. They urge this Court to exercise its discretion and admit the appeal out of time having proffered a reasonable reason for the delay. 2. The respondents oppose the application through their grounds of opposition dated 21st October 2025, arguing that the same is an abuse of the court process. Besides, the appellants did not obtain a certificate of delay under Section 79G of the Civil Procedure Act. **ANALYSIS AND DETERMINATION** 1. The law on filing an appeal out of time is settled. In ***Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR)***, the Supreme Court comprehensively addressed this issue and summarized the following guidelines: ***“85… 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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay; The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” [Emphasis mine]*** 1. The consequence of filing an appeal out of time without leave was discussed as such: ***“53. By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such ‘an appeal’, is tantamount to moving the court to remedy an illegality. This, the court cannot do.*** ***54. To file an appeal out of time and seek the court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence… Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it...”*** 1. Applying the foregoing to the instant application, it is discernible that the impugned Judgment was delivered on 26th January 2024 whilst the appeal was filed on or around 3rd April 2024, roughly a difference of 68 days. It is also established that an appeal from a decision of the Small Claims Court shall lie to this Court within thirty days. 2. The appellants decry that the delay in filing an appeal was occasioned by delays by the court registry staff in uploading the judgment to the Case Tracking System (CTS). This Court is alive to the challenges sometimes experienced on the CTS and I so find that the delay is excusable. To this end, the respondents did not oppose that the Judgment was only uploaded on 21st March 2024, roughly a difference of 56 days. While the instant application appears to have been spurred by the respondents’ objection, I am nonetheless inclined to exercise discretion in favour of the appellants and allow them an opportunity to regularize the position. 3. In so holding, I am of the considered view that the respondents shall not suffer any prejudice that cannot be compensated by way of damages. In any event, the appellants have already deposited the decretal sum in Court. 4. Accordingly, I make the following orders: 1. ***The Memorandum of Appeal dated 3rd April 2024, Record of Appeal dated 6th September 2024 and Submissions dated 25th April 2025 and 26th September 2024 are hereby expunged from the Court’s record.*** 2. ***The time for filing the appeal is hereby extended by 14 days from today’s date, failure to which the appeal shall stand dismissed.*** 3. ***For the avoidance of doubt, the decretal sum shall remain deposited in Court for 14 days to enable the appellants regularize the record. In default of the appellants obtaining any further orders within that period, the decretal sum shall be released to the respondent.*** 4. ***The respondents shall have the costs of this application.*** It is so ordered. ***Dated, signed and delivered*** *at* ***Nairobi this 16th day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of:** **Mr. for the Appellants/ Applicants** **Mr. for the Respondents** **Court Assistant - Kalondu**