Mukuhi v Njoroge (Civil Miscellaneous Application E1054 of 2024) [2026] KEHC 11813 (KLR) (Civ) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPELLATE DIVISION** **CIVIL MISC. APPLICATION NO. E1054 OF 2024** **TABITHA NJUGUNA MUKUHI…...............................APPLICANT** **VERSUS** **JAMES WAMAI NJOROGE………………....................RESPONDENT** **RULING** **Introduction** 1. Before this Court is the Applicant's Notice of Motion dated **31st October 2024** seeking, principally, leave to lodge an appeal out of time against the ruling delivered on **22nd March 2024** in **MILIMANI** **SCCC No. E4714 of 2023**. 2. The application is premised on the grounds appearing on its face and the supporting affidavit sworn by counsel for the Applicant, **Laban Kipchirchir Kirui.** **Applicant’s case** 1. The Applicant's case, in substance, is that although the impugned ruling was delivered on 22nd March 2024, her counsel was unable to lodge the intended appeal within the prescribed time because the lower court allegedly failed to upload the ruling and further delayed in supplying him with typed proceedings. 2. The Applicant contends that the delay was occasioned by circumstances beyond her counsel’s control and should not therefore be visited upon her. He has annexed to the application a draft memorandum of appeal which, according to him, demonstrates that the intended appeal is arguable. The Applicant further relied on her written submissions dated **5th May 2025**. **Respondent’s case** 1. The application is vehemently opposed. The Respondent filed a replying affidavit sworn by the Respondent and dated **7th February 2025**. He also filed submissions dated 12th March 2025. He contends that the Applicant is guilty of inordinate and unexplained delay and has not approached the Court with clean hands. 2. According to the Respondent, handwritten proceedings of the Small Claims Court were available to the parties on a daily basis as uploaded by the court on E- filing platform and the ruling delivered on 22nd March 2024 was uploaded on the same day at approximately **9:21 a.m.** The Respondent further points out that counsel for the Applicant was present in court when the ruling was delivered and therefore the Applicant cannot plausibly contend that he was unaware of the ruling or its outcome. 3. The Respondent additionally contends that typed proceedings were not necessary for the filing of a memorandum of appeal and that the Applicant has, in any event, failed to annex any letter or other correspondence demonstrating that he requested the ruling or proceedings from the lower court and that such request was not acted upon. 4. I have considered the application, the affidavit in support thereof, the replying affidavit, the parties' respective submissions and the applicable law. **Issues for determination** 1. In my view, the principal issue falling for determination is; whether the Applicant has established sufficient cause to warrant the exercise of this Court's discretion in her favour by extending the time within which to appeal. 1. There is, however, an ancillary issue which bears directly upon the exercise of that discretion, namely whether the draft memorandum of appeal annexed to the application discloses an intended appeal against the ruling of 22nd March 2024 in respect of which extension of time is sought. **Applicable law** 1. Appeals from the Small Claims Court are governed by **section 38 of the Small Claims Court Act**, which provides that a person aggrieved by a decision or order of that Court may appeal to the High Court **on matters of law**, and that the decision of the High Court on such appeal is final. 2. Rule 30 of the Small Claims Court Rules further provides that an appeal under section 38 is to be preferred to the High Court in accordance with **Order 42 of the Civil Procedure Rules**. 3. The period for lodging an appeal from a subordinate court to the High Court is prescribed by **section 79G of the Civil Procedure Act**, which provides that an appeal shall be filed within thirty days from the date of the decree or order appealed against, excluding any period certified by the lower court as having been requisite for preparation and delivery of the decree or order. The proviso permits an appeal to be admitted out of time where the appellant satisfies the Court that there was **good and sufficient cause** for failure to appeal within time. 1. The principles governing extension of time are settled. In ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others, Supreme Court Application No. 16 of 2014; [2014] KESC 12 (KLR*)**, the Supreme Court held, inter alia, that ***Extension of time is not a right of a party but an equitable remedy available only to a deserving party at the discretion of the Court; that the party seeking extension bears the burden of laying a satisfactory basis for the extension; that the Court considers the matter on a case-by-case basis; that the delay must be reasonably explained; and that prejudice to the opposite party is also relevant****.* 1. Similarly, the Court of Appeal in ***Thuita Mwangi v Kenya Airways Ltd, Civil Application No. NAI 162 of 2002; [2003] KECA 201 (KLR)*** reiterated the considerations traditionally applied in determining whether time should be extended, namely the length of the delay, the reason for the delay, the chances of the intended appeal succeeding and the degree of prejudice likely to be suffered by the respondent. 2. In ***Fakir Mohamed v Joseph Mugambi & 2 others [2005] KECA 340 (KLR)****,* the Court of Appeal reiterated that the discretion to extend time is wide and unfettered, but must nevertheless be exercised judicially, taking into account such matters as the period of delay, the reason for the delay, the chances of success of the intended appeal, prejudice to the respondent and generally the circumstances of the particular case. 3. More recently, in ***Muringa Company Limited v Archdiocese of Nairobi Registered Trustees [2020] KECA 761 (KLR),*** the Court of Appeal reaffirmed that extension of time is discretionary and that an applicant must place sufficient material before the Court to explain the delay and justify the exercise of discretion in his favour. **Length and explanation for the delay** 1. Applying those principles to the present application, the ruling sought to be appealed against was delivered on **22nd March 2024**. The application seeking leave to appeal was not filed until **31st October 2024**. There was therefore a delay of **more than seven months** from the date of delivery of the impugned ruling. 2. Even allowing for the statutory thirty-day period within which the appeal ought ordinarily to have been lodged, the Applicant remained inactive for approximately six months after expiry of the prescribed period before approaching this Court. 3. A delay of that magnitude is not necessarily fatal by itself. What is decisive is whether the Applicant has offered a credible and satisfactory explanation covering the material period of delay. The explanation offered is principally that the lower court failed to upload the ruling and delayed in supplying typed proceedings. That explanation presents several difficulties. 4. **First,** the Applicant has not exhibited a single letter, email, registry acknowledgment, receipt or other correspondence showing when he requested the ruling or typed proceedings from the Small Claims Court. There is consequently no objective evidence before this Court demonstrating when the alleged request was made, what precisely was requested, whether reminders were made, or when the requested documents were eventually supplied. 5. A party who invokes administrative delay on the part of a court as the explanation for failing to comply with a statutory timeline bears the burden of placing material before the appellate court demonstrating the steps he took to obtain the necessary documents. 6. The court of Appeal addressed a closely related contention in ***Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR.*** The Court cautioned that delay in obtaining typed proceedings is not, merely by being asserted, a sufficient answer to delay. The entire period of delay must be explained satisfactorily and the circumstances of each case considered. In the present matter, no such satisfactory evidential foundation has been laid. 7. **Secondly,** the Respondent has deponed that the ruling was uploaded on the same date it was delivered, at approximately 9:21 a.m. A copy of that ruling is attached together with handwritten proceedings for each day and they confirm the same. The Respondent further states that counsel for the Applicant was present when the ruling was delivered. Those assertions have not been displaced by cogent evidence demonstrating that the Applicant was unable, despite reasonable diligence, to ascertain the contents and effect of the ruling. 8. The presence of counsel when the ruling was delivered is particularly material. The Applicant was therefore represented when the Court pronounced itself. The time for taking steps towards an appeal could not ordinarily remain suspended indefinitely merely because typed proceedings had not been supplied. 9. **Thirdly,** the Court finds considerable force in the Respondent's submission that typed proceedings are principally relevant to the preparation of the record of appeal and the eventual prosecution of the appeal. They do not, without more, explain why an intending appellant who knows the decision made against him could not lodge a memorandum of appeal within the prescribed period, particularly where the proposed grounds concern questions of law. 10. Section 79G itself is instructive. What the statute expressly excludes from computation is the time **certified by the lower court** as having been requisite for preparation and delivery of the decree or order appealed against. No certificate of delay has been placed before this Court. 11. The Applicant has therefore neither demonstrated that the requisite documents were formally sought within time nor produced certification from the lower court showing that any particular period was required for their preparation. 12. The explanation that the delay was caused by the lower court therefore remains a bare assertion unsupported by documentary evidence. **The draft memorandum of appeal** 1. There is an additional and, in my view, significant difficulty with the application. 2. The Applicant expressly seeks extension of time to appeal against the **ruling delivered on 22nd March 2024**. It would therefore be expected that the draft memorandum of appeal annexed to the application would identify errors of law allegedly committed by the Small Claims Court in that ruling. 3. I have carefully considered the draft memorandum of appeal. Rather remarkably, the grounds contained therein do not appear to challenge the ruling of 22nd March 2024 at all. They are instead directed at the substantive **judgment delivered on 17th November 2023**. (***annexure 3 on the Replying affidavit***) 4. The distinction is not merely technical. A judgment delivered on 17th November 2023 and a ruling subsequently delivered on 22nd March 2024 are separate judicial decisions. An application for extension of time to challenge the latter cannot ordinarily be employed as a vehicle for obtaining leave, indirectly, to appeal against the former. 5. If the Applicant intended to appeal against the judgment of 17th November 2023, he was required to seek extension of time in relation to that judgment and to explain his failure to appeal against it within the prescribed period. That is not the application presently before this Court. 6. Conversely, if the Applicant intends to appeal against the ruling of 22nd March 2024, the draft memorandum ought, at the very least, to disclose the alleged errors of law arising from that ruling. 7. This defect also materially weakens the Applicant's argument concerning the alleged delay in obtaining the ruling. If the draft grounds do not arise from the ruling whose alleged unavailability is said to have prevented the filing of the appeal, the causal connection between the unavailable ruling and the failure to file the intended appeal becomes difficult to discern. Put differently, the Applicant has not demonstrated why the alleged non-availability of the ruling of 22nd March 2024 prevented him from drafting grounds which, on the face of the annexed memorandum, relate to the judgment delivered approximately four months earlier on 17th November 2023. 8. The Court is entitled, when exercising its discretion, to consider whether the intended appeal is arguable. This does not require the Court to conduct a miniature appeal or conclusively determine the merits. However, there must at least be an identifiable proposed challenge to the decision in respect of which extension is sought. 9. In the circumstances before me, there is no proper draft challenge to the ruling of 22nd March 2024 upon which this Court could assess even prima facie whether the proposed appeal raises an arguable point of law within the meaning of section 38 of the Small Claims Court Act. **Right of appeal and procedural timelines** 1. The Court is alive to the principle that the right of appeal is an important component of access to justice and that procedural rules should ordinarily facilitate rather than obstruct the determination of disputes on their merits. 2. That principle does not, however, render statutory timelines optional. The Supreme Court in ***Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (supra)*** emphasised that extension of time is an equitable indulgence rather than a right and that the burden rests upon the party in default to satisfy the Court that the discretion should be exercised in his favour. 3. Likewise, in ***Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR (supra)****,* the Court stressed the necessity of explaining the whole period of delay to the satisfaction of the Court. Article 159(2)(d) of the Constitution cannot be invoked to eliminate substantive statutory requirements or to relieve a litigant from the obligation of satisfactorily explaining non-compliance with a prescribed period. 4. Litigation must at some point attain finality. While the Court should guard against shutting a deserving litigant out of the seat of justice merely because of an excusable procedural lapse, it must equally guard against reopening concluded disputes where the party seeking indulgence has failed to demonstrate reasonable diligence **Disposition** 1. Taking the circumstances cumulatively, the Court finds that: 2. ***the impugned ruling was delivered on 22nd March 2024, while the present application was not filed until 31st October 2024; the resulting delay is substantial;*** 3. ***the Applicant has failed to place before the Court documentary evidence demonstrating when he requested the ruling or typed proceedings;*** 4. ***no certificate of delay or equivalent evidence from the Small Claims Court has been produced;*** 5. ***the Applicant was represented by counsel when the ruling was delivered;*** 6. ***the alleged absence of typed proceedings has not been demonstrated to have prevented the timely filing of a memorandum of appeal; and*** 7. ***most significantly, the annexed draft memorandum of appeal does not challenge the ruling of 22nd March 2024 in respect of which extension is sought, but instead appears directed at the earlier judgment delivered on 17th November 2023***. 8. The cumulative effect of those matters is that the Applicant has failed to demonstrate the **good and sufficient cause** contemplated under section 79G of the Civil Procedure Act. 9. The discretion to extend time must be exercised judicially and on the basis of material placed before the Court. It cannot be exercised merely on sympathy or upon unsubstantiated allegations that delay was occasioned by the registry. 10. Consequently, I find no sufficient basis upon which this Court may properly exercise its discretion in favour of the Applicant. 11. The Notice of Motion dated **31st October 2024** is accordingly **dismissed**. 12. The Respondent having successfully resisted the application, and there being no sufficient reason to depart from the ordinary rule that costs follow the event, the **costs of the application are awarded to the Respondent**. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JULY 2026.** **HON. L. P. KASSAN** **JUDGE** **In the presence of;** No appearance for Applicant Kariuki for Respondent Leonard – Court Assistant