Samuel Mapesa Makombere v Khetshi Dharamshi & Co. Limited

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***[Coram: A. C. Mrima, J.]*** **MISC CIVIL APPLICATION NO. E207 OF 2025** ***-between-*** **SAMUEL MAPESA MAKOMBERE ................................. APPLICANT** ***-versus-*** **KHETSHI DHARAMSHI & CO. LIMITED.................... RESPONDENT** **RULING** **Background:** 1. The application before this Court stems from the primary dispute in *Nairobi [Milimani] Chief Magistrates Commercial Courts Civil Suit No. 6383 of 2017* (hereinafter referred to as ‘***the suit’***), where *Samuel Mapesa Makombere,* the Applicant herein, sued *Khetshi Dharamshi & Co. Limited,* the Respondent herein, his employer, for negligence that led to lead poisoning. 2. In its judgment delivered on 19th June 2025, the trial Court found the Respondent 100% liable. It awarded the Applicant Kshs.300,000/- in general damages and Kshs.3,000/- in special damages, alongside interest and costs. Dissatisfied with the quantum of general damages awarded, the Applicant intended to appeal but failed to do so within the statutory 30-day period, thereby prompting the present application for enlargement of time. 3. The application was heard by way of written submissions, hence, this ruling. **The Application:** 1. The Applicant moved the Court *vide* a Notice of Motion dated 18th September 2025, pursuant to Sections 1A, 1B, 3A, and 79G of the Civil Procedure Act. He sought the following orders: 2. *THAT the Honourable Court be pleased to grant the Applicant leave to file appeal out of time against the judgment of Hon. A. Nyoike delivered on 19th June, 2025 in Milimani - CMCC No. 6383 of 2017.* 3. *THAT the costs of this application be provided for.* 4. The application was grounded on the premise that the statutory 30-day window lapsed because the Applicant’s Advocates were unable to obtain a typed copy of the judgment in good time. It was averred that the delay was not inordinate, the Respondent would not suffer injustice, and the intended appeal raised triable issues with high chances of success. 5. The application was supported by the affidavit of *J.N. Mumbi*, an Advocate representing the Applicant, sworn on 15th September 2025. He deposed that following the delivery of the judgment on 19th June 2025, the Applicant instructed the firm to lodge an appeal. However, by the time a printed copy of the judgment was secured, reviewed, and explained to the Applicant, the appellate window had lapsed. It was his case that the delay was caused by circumstances beyond the Applicant’s control and that admitting the annexed draft Memorandum of Appeal out of time would serve the broader interests of justice. *The Submissions* 1. In written submissions dated 29th October 2025, the Applicant argued that Section 79G of the Civil Procedure Act grants the Court unfettered discretion to admit an appeal out of time provided good and sufficient cause is shown. Relying on the principles enunciated in *Mwangi v Kenya Airways Ltd* [2003] eKLR and *Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi* (Civil Application No. 255 of 1997), the Applicant submitted that the Court must weigh the length of the delay, the reason for the delay, the arguability of the appeal, and the degree of prejudice to the Respondent. 2. It was submitted that the delay of approximately two months was not inordinate and was occasioned by administrative delays in securing the typed judgment. To buttress the argument that procedural blunders should not defeat substantive justice, the Applicant cited *Philip Chemwolo & Another -vs- Augustine Kubede* (1982-88) KAR 103 and *Aviation Cargo Support Limited -vs- St. Mark Freight Services Limited* (Civil Application No. NAI. 98 of 2013). Further, support was drawn from the precedent in *Samuel Mwaura Muthumbi -vs- Josephine Wanjiru Ngugi & another [*2018] eKLR, where an extension was granted because the trial Court had not promptly communicated the readiness of the proceedings. **The Respondent’s case:** 1. The application was opposed *vide* a Replying Affidavit of *David Mutua*, the Administration Manager of the Respondent, sworn on 19th November 2025. He deposed that the trial Court’s judgment was delivered in the presence of all Advocates on record and was uploaded onto the Judiciary’s online portal the very next day, 20th June 2025, making it readily accessible for download. 2. It was his case that the Applicant failed to demonstrate any diligence or challenges encountered in accessing the portal. Crucially, he deposed that the Respondent had already satisfied the decree; following demands for costs and the decretal sum made by the Applicant’s Advocates on 4th and 8th August 2025. He stated that Respondent issued cheques totalling Kshs. 422,410/- on 4th and 19th August 2025. Consequently, the Respondent averred that the application was a belated afterthought demonstrating inexcusable indolence. *The Submissions* 1. In written submissions dated 19th November 2025, the Respondent argued that the Applicant’s primary excuse, namely, that the judgment was not typed in good time, was factually inaccurate given the judgment’s availability on the e-filing portal since 20th June 2025. The Respondent submitted that the Applicant offered no satisfactory account of the steps taken to secure the judgment within the stipulated timelines. 2. Emphasizing that equity aids the vigilant, the Respondent relied on the decision in *Gafo Abaye -vs- Pauline Mueni Julius* (Mombasa HCCA No. E13/2021), which quoted *Snell’s Equity* to assert that Courts of equity refuse aid to stale demands where a party has slept on their rights. 3. Further, relying on *Joseph Kangethe Kabogo & Anoth. vs Michael Kinyua Ngari* (Misc. Civil Application No. 944/2011), it was submitted that an unexplained delay cannot be cured by invoking Article 159(2)(d) of the Constitution, as the provision is not an omnibus cure for indolence and abuse of Court processes. **Analysis and Determination:** 1. Having carefully considered the application, the supporting and replying affidavits, and the rival submissions, the singular issue for determination is whether the Applicant has demonstrated sufficient cause to warrant the exercise of this Court’s discretion to extend the time for filing an appeal. 2. The timeline within which an appeal must be instituted and jurisdiction to extend such time is provided for under Section 79G of the Civil Procedure Act as follows; ***79G. Time for filing appeals from subordinate courts*** *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.* 1. In ***Paul Wanjohi Mathenge -vs- Duncan Gichane Mathenge***[2013] eKLR, a Court of Appeal decision approved by the Supreme Court in ***Nick* *Salat -vs- Independent Electoral and Boundaries Commission & 7 others***(Application 16 of 2014) [2014] KESC 12 (KLR), the Court laid out the principles for extension of time as follows; *… 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…* 1. The overarching principle from the foregoing discussion is that a Court’s discretion can only be exercised favourably if an Applicant explains sufficiently the length of the delay, the reasons for the delay, the arguability of the intended appeal, and the potential prejudice to the respondent. 2. Regarding the length and reason for the delay, the impugned judgment was delivered on 19th June 2025. The statutory 30-day period expired 20th July 2025. The instant application was filed on 19th September 2025, translating to a delay of approximately two months. 3. While a two-month delay is not inherently inordinate, it must be supported by a plausible explanation. It was the Applicant’s case that the delay was caused by the inability to secure a typed copy of the judgment. However, the evidence adduced by the Respondent, specifically the Judiciary portal activity extract, uncontrovertibly demonstrated that the judgment was generated and uploaded to the system on 20th June 2025. The Applicant neither rebutted this fact, nor was there any evidence to demonstrate active steps taken to pursue the proceedings. 4. In ***Gathiga & 2 others (As Officials of Murang’a Farmers Union) v Mugumoini Farmers Company Ltd*** *(*Civil Appeal E068 of 2023) [2026] KEHC 9036 (KLR),the Court observed thus; *30. Similarly, In Ibrahim Mungara Mwangi v Francis Ndegwa Mwangi [2014] eKLR, the Court, citing Snell’s Equity,31st Edition, held thus:* *The court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence.* *31. The principle emerging from the above cited decisions is that what the law guarantees is not an unlimited right to be heard irrespective of a party's conduct, but a reasonable opportunity to be heard. Once such opportunity is afforded, a litigant bears the responsibility of utilizing it. A party who fails to do so cannot subsequently blame the court for the consequences of his own inaction.* 1. The circumstances of this case apply to the above pronouncement. The Applicant failed to demonstrate the steps he took during the period of delay. The failure to check the CTS or formally request the proceedings stripped his explanation of its plausibility. 2. On the question of prejudice, I have carefully appreciated the events that followed the judgment. Acting on demands issued by the Applicant’s Advocates, as evidenced by the letters dated 8th August 2025 and 19th August 2025, the Respondent fully settled the decretal sum and costs. 3. While the execution or satisfaction of a decree does not statutorily bar a party’s right of appeal, the sequence of events, demanding and accepting full payment in August, only to file an application for extension of time to appeal the quantum in late September, strongly suggests an afterthought. 4. Reopening the dispute out of time under the circumstances would visit undue prejudice upon a Respondent who had reasonably concluded that the matter was settled. 5. Finally, while the intended Memorandum of Appeal may raise triable issues on quantum, arguability alone cannot override the absence of a satisfactory explanation for the delay and the substantial prejudice the Respondent would suffer. This Court finds that the Applicant slept on his rights and failed to exercise reasonable diligence. **Disposition** 1. In light of the foregoing conclusions, this Court finds that the Applicant has failed to establish good and sufficient cause to warrant the favourable exercise of this Court’s discretion. Consequently, the following final orders issue: **[a] The Notice of Motion dated 18th September 2025, is hereby dismissed.** **[b] The costs of the application are awarded to the Respondent.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **September, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Ms Kareni** holding brief for M/S Musili Mbiti,LearnedCounsel for the Applicant. **No appearance** for the Respondent. **Michael/Amina** –Court Assistants.