https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1242

Sinohydro Corporation v Muchiri (Civil Application E038 of 2025) [2026] KECA 1242 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1242 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E038 of 2025 SG Kairu, JA July 3, 2026 Between Sinohydro Corporation Applicant and Miriam Wangui Muchiri Respondent (Being an application for extension out of time to file a Notice of Appeal and Record of Appeal out of time from the Judgment of the High Court of Kenya at Thika (T. W. Ouya, J.) dated 6th November 2025 in HCCA No. E056 of 2024) Ruling 1.Miriam Wangui Muchiri, the respondent, instituted suit before the Magistrate’s Court claiming general and special damages for serious injuries she sustained on 6th February 2015. Her case was that on that date, while trenching for a sewer line, the applicant used explosives presumably to blast rocks and as a result shards of stones flew, hitting her. As a result, she sustained severe injuries that required hospitalization at Kenyatta National Hospital for a month. She averred that because of the accident she lost her livelihood of hawking snacks. 2.The trial magistrate found the applicant 100% liable for the accident and awarded the respondent Kshs. 600,000.00 as general damages; Kshs. 627,000.00 for loss of earnings; and special damages of Kshs. 80,504.00. 3.The applicant appealed to the High Court. It partially succeeded in that appeal. The High Court set aside the award of Kshs.627,000.00 that had been made in respect of loss of earnings. However, the award for general damages of Kshs. 600,000.00 was enhanced to Kshs. 900,000.00. Still dissatisfied, the applicant intends to challenge the judgment of the High Court before this Court, and hence the present application for extension of time. 4.The High Court Judgment having been delivered on 6th November 2025, the applicant should have filed the notice of appeal at the latest on 20th November 2025. It did not, and that is the reason it has moved the Court by its present application dated 27th January 2026 under Rule 4 of the Court of Appeal Rules seeking leave to file and serve a notice of appeal, as well as a record of appeal, out of time. 5.The Supreme Court of Kenya in the case of Salat vs. Independent Electoral and Boundaries Commission & 7 Others (Application No. 16 of 2014) [2014] KESC 12 (KLR) pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; and that delay should be explained to the satisfaction of the court. 6.Leonorah Shigoli, a Legal Officer with Cannon General Insurance Company Limited, the insurer of the applicant explained in her affidavit in support of the application that judgment was supposed to be delivered on 6th November 2025 but was not delivered; that the High Court indicated that the judgment would be delivered electronically and would be posted on the Court Tracking System but that did not happen; that it was not until 9th December 2025 when the advocates for the applicant made enquiries at the court registry that they were furnished with a copy of the judgment; that the applicant’s advocates then sought instructions from the insurer on whether to appeal the High Court decision; that the applicant’s advocates offices were closed for December holidays from 10th December 2025 until 13th January 2026; and that by the time instructions were issued to the advocates, time for filing the notice of appeal had already lapsed. 7.Counsel for the applicant Ms. Godia holding brief for Mr. Alusa relied on the applicant’s written submissions dated 10th March 2026 in which the matters set out in the supporting affidavit are reiterated. It was submitted that a plausible explanation for the delay involved has been given; that the intended appeal raises serious questions of law; that the respondent will not be prejudiced; and that conversely the applicant will be prejudiced if shut out from pursuing an appeal. 8.The respondent in her replying affidavit has asserted, and this is not denied, that the advocates for both parties were in court on 6th November 2025 for the delivery of the judgment; that despite the judgment having been supplied to the advocates on either the 8th or 9th December 2025 as claimed, no explanation is given why a notice of appeal, which did not require certified copy of the judgment, was not filed immediately; that even after the advocates offices resumed operation on 13th January 2026, the present application was not filed until 27th January 2026 and no explanation is given for that further delay. The respondent deponed that she is now 75 years old and the ability to enjoy the fruits of the judgment are progressively diminishing; and that she will suffer severe prejudice if the application is allowed. 9.Learned counsel Mrs. Karanja holding brief for Miss. Kamau for the respondent relied on the respondent’s written submissions dated 10th March 2026. It was submitted that the applicant has not discharged its burden by laying a proper basis for the exercise of the court’s discretion in its favour; that the entire period of delay is not explained at all; that closure of advocates offices does not suspend running of time; that the delay involved is self created; and that the intended appeal is in any event frivolous. 10.I have considered the application, the affidavits and the submissions by learned counsel. Although under Rule 4 of the Court of Appeal Rules the Court has unfettered discretion to extend time, that discretion should be exercised judiciously. Justice Waki, JA explained the legal principles in that regard in the case Fakir Mohamed vs. Joseph Mugambi & 2 Others (Civil Application No. Nai. 332 of 2004) KECA 340 (KLR) where he stated that:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factor.”See also the Supreme Court of Kenya decision in the case of Salat vs. Independent Electoral and Boundaries Commission & 7 Others (above). 11.The impugned judgment of the High Court on the face of it is “dated, signed and delivered electronically this 6th Day of November 2025” and there is no reason to doubt that it was delivered as indicated. And even if the applicant’s advocates were only able to get a copy from the registry on 9th December 2025, there was enough time, before the Christmas recess (during which time does not run), for the applicant’s advocates to lodge a notice of appeal as they waited for instructions. Beyond the statement by Leonorah Shigoli in the supporting affidavit that instructions were given to the advocates to appeal “upon resumption of business”, there is no indication when precisely this was done. Furthermore, the office having re-opened on 13th January 2026, it took another 14 days before the present application was filed. No explanation for that delay is offered. 12.All in all, I am not persuaded that this is a proper case for the Court to exercise its discretion in favour of the applicant. The application fails and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.S. GATEMBU KAIRU, FCIArb, CArb................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.