https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4020

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC APPEAL NO. E055 OF 2025** **SAFARICOM INVESTMENT CO-OPERATIVE LTD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT** **VERSUS** **FRANCISCAH SAINA:::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **EX-PARTE** **RULING** The application is dated 19th August 2025 and is brought under Order 50 Rule 6 of the Civil Procedure Rules,2010, Section 79G of the Civil Procedure Act Cap 21 Laws of Kenya seeking the following orders; 1. That this Honourable Court be pleased to grant leave to the Applicant to file an Appeal out of time against the judgement of Honourable Martha A. Nanzushi (P.M) delivered on 27th June 2025 in Mavoko CM CELC No. E45 of 2024. 2. That the annexed Memorandum of Appeal as duly filed and served upon payment of requisite court fees. 3. That this Honourable Court be pleased to grant the applicant orders for stay of execution pending the hearing and determination of the Appeal. 4. That cost of this Application be in the cause. The application is based on the following grounds that Judgment in Mavoko CM ELC No. E045 of 2024 was delivered on 27th June 2025. The statutory period of 30 days for filing an appeal has since lapsed. The Respondent's advocate has served a notice of intention to execute against the Appellant. The delay in filing the appeal was occasioned by circumstances beyond the Applicant's control. The Applicant being a co-operative society had to seek Board authorization to institute legal proceedings. Moreover, the internal approval processes of the Applicant had to be followed as the appeal process would also come with financial implications among other critical effects. The delay is not inordinate and is excusable. The intended appeal is arguable, raises substantial points of law and fact, and has high chances of success. The Respondent will not suffer prejudice if the orders sought are granted, whereas the Applicant stands to suffer substantial loss if denied an opportunity to be heard on appeal. It is in the interest of justice that this application be allowed. The Respondent opposed the application and stated that the Applicant had failed to meet the threshold for the exercise of the court’s judicial discretion. That the delay was occasioned by the Applicant’s own internal inefficiency and they had not shown sufficient cause. This court has considered the application and the submissions therein. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that: *“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:* *Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”* From the provision above, it is noteworthy that the phrase used is“an appeal may be admitted out of time”**.** This therefore means that an appeal may indeed be admitted out of time. However, the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal. In Mugo & Others vs Wanjiru & Another (1970) EA 482 the court stated as follows; *“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularised before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”* The Court of Appeal in the above case guided that whenever an application for extension of time is before a court, the court ought to take into account several factors as observed by Odek JJA in Edith Gichungu Koine vs Stephen Njagi Thoithi (2014) eKLR thus; *“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”* The Court of Appeal further guided that there is also a duty imposed on courts to ensure that the factors considered are consonant with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court. In Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others (2013) eKLRthe court held as follows; *“(1) 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.* *(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.* *(3) Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.* *(4) Whether there is reasonable reason for the delay.**The delay should be explained to the satisfaction of the court.* *(5) Whether there will be any prejudice suffered by the respondent of the extension is granted.* *(6) Whether the application has been brought without undue delay; and* *(7) Whether uncertain cases, like election petition, public interests should be a consideration for extending time.”* I have given due consideration of the record in light of the pleadings, submissions, and principles that guide the court. The reason given for the delay in filing the appeal is that the Applicant was occasioned by circumstances beyond the Applicant's control. The Applicant being a co-operative society had to seek Board authorization to institute legal proceedings. Moreover, the internal approval processes of the Applicant had to be followed as the appeal process would also come with financial implications among other critical effects. The Applicant has annexed the draft Memorandum of Appeal. I find that this application was filed on 19th August 2025. I find that the applicant does have an arguable appeal. I also find that the applicant is not guilty of inordinate delay in the circumstances. I find this application is merited and I grant prayer 1 on condition that the appeal is filed and served within the next 30 days. Costs of the application to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**