https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7710

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **MISC. APPLICATION NO. E184 OF 2025** **STEPHEN ODHIAMBO OTIENO……..…………………….APPLICANT** **VERSUS** **CECILIA ANGELA PETERS………………………………..RESPONDENT** **RULING** 1. **THE NOTICE OF MOTION DATED 26TH AUGUST, 2025.** 2. The Appellant/Applicant’s notice of motion dated 26th August, 2025 is expressed to be brought under *Sections 79G* and *95* of the *Civil Procedure Act* and *Order 43 Rule 2* of the *Civil Procedure Rules* and all other enabling provisions of law and seeks the following orders: 1. **THAT the Honourable Court be pleased to extend the time limited by the *Civil Procedure Rules* and the memorandum of appeal dated 26th August, 2025 be deemed as duly filed.** 2. **THAT the Honourable Court be pleased to grant leave to the Applicant to appeal against the decision and judgement in *Kisumu SCCOMM No. E590 of 2025.*** 3. **THAT costs of this application be provided for in the intended appeal.** 3. The grounds upon which the Applicant has premised his application are that judgement in this matter was delivered on 17th July, 2025 and the time for lodging an appeal consequently lapsed on 16th August, 2025. 4. The Applicant contends that immediately upon delivery of the judgment, he issued instructions to his advocates to institute an appeal and, pursuant thereto, the advocates prepared the requisite appeal documents. However, owing to an inadvertent administrative omission within the advocates’ office, the matter was not followed through to filing and payment of the appeal. 5. The Applicant further states that the said omission only came to the attention of his advocates on 26th August, 2025 after the Applicant made a follow-up on the status of the appeal and the next steps to be undertaken. 6. The Applicant avers that he has an arguable appeal with high chances of success and that the delay occasioned herein is neither inordinate nor inexcusable. 7. **THE SUPPORTING AFFIDAVIT.** 8. The application is supported by the affidavit of **Dave Lung’aho Siganga,** the Applicant’s Counsel, sworn on 26th August, 2025. 9. In his affidavit, Counsel deposes that judgment in *Kisumu SCCOMM No. E590 of 2025* was delivered on 17th July, 2025 and that the statutory period for lodging an appeal lapsed on 16th August, 2025. 10. Counsel avers that immediately upon delivery of judgement, the Appellant instructed him to file an appeal and that a memorandum of appeal was duly prepared and ready for filing. 11. However, Counsel explains that his firm inadvertently failed to file the appeal within time owing to an administrative oversight in the office. Counsel further states that the omission only came to light on 26th August, 2025 after the client made inquiries regarding the progress of the matter and the next procedural steps. 12. He deposes that although the time for filing the appeal has expired, this Honourable Court retains the discretion to enlarge time for filing the same. He avers that the delay of eleven days is neither inordinate nor inexcusable. 13. Counsel further expresses the belief that the intended appeal is arguable and has high chances of success, and has to that end annexed a draft memorandum of appeal and urges the Court to allow the application in the interests of justice. 14. **THE REPLYING AFFIDAVIT.** 15. The Appellant’s motion is resisted and to that end the Respondent filed a replying affidavit that he swore on 8th December, 2025. 1. In her replying affidavit the Respondent deposes that contrary to the averments made in the application and the supporting affidavit, the decree was served upon the Applicant’s Counsel through email and WhatsApp on 25th August, 2025 and that the said messages were duly received and read. 2. The Respondent avers that it was the said service that prompted the Applicant and Counsel into action, as evidenced by the fact that both the application and the memorandum of appeal are dated 26th August, 2025. 3. The Respondent further contends that although the application and memorandum of appeal bear the date 26th August, 2025, the application was not filed until 2nd September, 2025 and that neither the Applicant nor Counsel has offered any tenable explanation for the additional delay, thereby demonstrating indolence and inexcusable delay. 4. The Respondent further deposes that enlargement of time is an equitable remedy granted at the discretion of the Court and that the Applicant has failed to place before the Court sufficient and satisfactory reasons to warrant the exercise of such discretion. 5. According to the Respondent, the application is prejudicial as it is intended to delay execution and deny the Respondent the enjoyment of the fruits of the judgement delivered on 17th July, 2025. 6. The Respondent also challenges the merits of the intended appeal, contending that the draft memorandum of appeal merely raises factual issues that were fully canvassed and determined by the trial court and does not cite any specific error of law or principle allegedly committed by the trial court. 7. The Respondent consequently avers that the application was brought in bad faith, is frivolous, vexatious and an abuse of the court process intended to waste judicial time, and therefore prays that the same be dismissed with costs. 8. **THE ORAL SUBMISSIONS BY THE PARTIES.** 9. The application was canvassed by way of brief oral submissions, where each party largely relied on, reiterated and emphasized the contents of their filed affidavits and the annextures thereto, without introducing any substantial new matters. 1. **ISSUES FOR DETERMINATION.** 2. Having considered the application, the two affidavits, the submissions by both Counsel and the record in its entirety, the issues that arise for determination are as follows: 1. Whether the Applicant has laid a sufficient basis to warrant the enlargement of time within which to lodge the intended appeal against the judgement delivered in *Kisumu SCCOMM No. E590 of 2025.* 2. Whether the delay in filing the appeal and the present application has been satisfactorily explained and whether the same is inordinate or inexcusable. 3. Who should bear the costs of the application. 3. **ANALYSIS AND FINDINGS.** 4. The first and second issues for determination are intertwined and shall therefore be determined together. 1. The principles governing applications for enlargement of time are now well settled. The grant of leave to file an appeal out of time is a discretionary remedy which must be exercised judiciously and upon sufficient cause being shown. 2. In exercising that discretion, the Court considers, *inter alia,* the length of the delay, the reason for the delay, the arguability of the intended appeal and the degree of prejudice likely to be suffered by the Respondent if the orders sought are granted. 3. In the present matter, there is no dispute that judgement was delivered on 17th July, 2025 and that the statutory period for filing an appeal lapsed on 16th August, 2025. The Applicant attributes the delay to an inadvertent administrative omission within Counsel’s chambers despite clear instructions having been issued to institute an appeal and despite a memorandum of appeal having already been prepared. 4. Counsel candidly admitted the omission and explained that the oversight only came to light when the client followed up on the matter. 5. The Respondent has urged this Court to find that the Applicant and his Counsel were indolent and undeserving of the equitable remedy sought. The Respondent particularly faults the Applicant for the additional delay between 26th August, 2025 and 2nd September, 2025 when the application was eventually filed. 6. While this Court agrees that litigants and Counsel alike are under a duty to act diligently and expeditiously, the Court must nevertheless balance procedural discipline against the wider interests of substantive justice. 7. I have considered the explanation tendered by the Applicant and I am satisfied that the delay herein, viewed in its totality, is not so inordinate as to warrant shutting the Applicant out from the seat of justice. The delay is relatively short and, in my view, is capable of being compensated by an award of costs. 8. More importantly, there is no evidence that the Applicant personally contributed to the omission complained of. The material placed before Court demonstrates that the Applicant had expressed the desire to appeal immediately after delivery of judgement and that the failure to file the appeal within time was attributable to Counsel’s inadvertence. The Court is guided by the decision in ***Belinda Murai & 6 Others v Amos Wainaina [1979] KECA 25 (KLR)*** where **Madan J.A.** famously stated: ***“A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel… The door of justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better.”*** 1. Similarly, in ***Philip Chemwolo & Another v Augustine Kubede [1982–1988] 1 KAR 103,*** the Court of Appeal observed that: ***“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit.”*** 1. This Court fully associates itself with the foregoing principles. Whereas mistakes by Counsel should not be encouraged, the Court ought, where the interests of justice demand, to avoid visiting such mistakes upon an innocent litigant, particularly where no serious prejudice incapable of compensation by costs has been demonstrated. I am therefore persuaded that sufficient cause has been shown to warrant the exercise of this Court’s discretion in favour of the Applicant. 2. I have also perused the draft memorandum of appeal annexed to the application. Without delving into the merits of the intended appeal at this interlocutory stage, I am satisfied that the intended appeal is not frivolous and raises arguable issues deserving ventilation before the appellate court. 3. In the premises, I find and hold that the Applicant has satisfactorily explained the delay in filing the appeal and that the said delay is neither inordinate nor inexcusable. Consequently, the notice of motion dated 26th August, 2025 is merited. 4. **CONCLUSION AND DIAPOSITION.** 5. Accordingly, the Court makes the following orders: 1. The time within which to lodge the appeal is hereby enlarged and the memorandum of appeal shall be filed and served within 7 days from the date of this ruling. 2. Upon compliance with (a) above, the costs of the application shall abide the outcome of the intended appeal. 3. In the event of default and/or non-compliance with (a) above, the application dated 26th August, 2025 shall shall be deemed as having been dismissed with costs and without further order of the Court effective the date of this ruling. 6. This file is hereby closed. DELIVERED (virtually), DATED & SIGNED this 28th day of May, 2026. **JOE M. OMIDO.** **JUDGE** FOR APPLICANT: **Mr. Siganga** for **Mr. Ouma.** FOR RESPONDENT: **Mr. Madara.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**