https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6762

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **HC MISC. CIVIL CAUSE NO. E022 OF 2025** **EDWARD NDERITU WAINANINA…………….…….……1ST APPLICANT** **JOHN MUKWE LOKISHON………………………...………2ND APPLICANT** **WESLEY MUGAMBI NJIRU……………………………..…3RD APPLICANT** **-VERSUS-** **KENYA ELECTRICITY TRANSMISSION COMPANY LIMITED…………………………………………………………RESPONDENT** **AND** **MORO OLE REKISHOR……………………………………………3RD PARTY** **RULING** 1. For determination is the motion dated 27.03.2025 by **Edward Nderitu Wainaina, John Mukwe Lekishon,** and **Wesley Mugambi Njiru** (hereafter the 1st, 2nd and 3rd Applicants, respectively/the Applicants) seeking leave to appeal out of time against the ruling delivered on 20.02.2025 in **Ngong CMCC No. 22 of 2020 Edward Nderitu Wainanina & 2 others -vs- Kenya Electricity Transmission Company Limited & Another,** andthat the memorandum of appeal annexed be deemed as duly filed. The motion is expressed to be brought under Article 159(2)(d) of the Constitution, Sections 3, 3A, 79G and 95 of the Civil Procedure Act (CPA) and order 50 Rule 6, of the Civil Procedure Rules (CPR) among others. 2. **Janeffer W. Nduta**, the advocate on record for the Applicants swore the supporting affidavit whose purport is that at the delivery of the ruling, the learned magistrate only read part of the ruling and directed advocates to access the full ruling through the Judiciary Case Tracking System (CTS) ; that however, the ruling was not uploaded on time despite follow-up with the Ngong Registry through which she learned that the court file was not at the registry; that on 19th March 2025 the deponent became concerned by the prolonged delay in uploading the ruling and sent a representative to the Ngong Registry to inquire about the matter; and that it was on that date that a copy of the ruling was uploaded on the CTS. Copies of the ruling and the CTS printout showing the upload date were annexed to the affidavit. The deponent complained that the delay in accessing the ruling hindered the Applicant from making an informed decision regarding the intended appeal. 3. The deponent further swore that upon finally receiving the ruling on 19th March 2025, the Applicants expressed their intention to challenge the lower court’s decision striking out their suit; that she subsequently wrote to the Executive Officer of Ngong Law Courts requesting typed proceedings and a copy of the order to facilitate preparation of the appeal, but those documents had not yet been supplied; and that she was apprehensive that the statutory period for filing the appeal would lapse before the proceedings and order were availed. 4. Stating that the delay in filing the appeal was not deliberate but occasioned by the lower court’s delay in availing the ruling and proceedings, the deponent asserts that the intended appeal has overwhelming chances of success and raises important issues of law and fact deserving consideration by the High Court. A draft memorandum of appeal was annexed in support of that assertion. She further stated that the application was filed in good faith and without undue delay. The deponent asserts that unless leave to appeal out of time is granted, the Applicants will suffer prejudice since their suit was summarily struck out. She therefore urged the court to exercise its discretion in the interest of justice and grant the Applicants leave to file their intended appeal out of time. 5. The replying affidavit in opposition to the motion was sworn by **Jillo Madras**, described as a Senior Surveyor of the Defendant/Respondent, **Kenya Electricity Transmission Company Limited (KETRACO)** (hereafter the Respondent)**.** To the following effect**.** Accusing the Applicants of unreasonable unexplained delay in filing the motion, he dismisses it as an afterthought and an abuse of the court process. The deponent further avers that the Applicants have not met the threshold for the orders sought and have concealed material facts from the court. Including the fact that the Respondent had already compensated the then self-declared proprietor of the suit property in respect of the easement and therefore should not be dragged into litigation, especially as the Applicants purchased the property with full knowledge of the overriding interests affecting it, including the easement in favour of the Respondent. 6. And contending that the Applicants are seeking unjust enrichment from property, he describes the application as frivolous, vexatious and intended to frustrate the conclusion of the dispute which dates back to 2022; that the Respondent had issued a Third-Party Notice against **Moro Ole Rekishor** (the Interested Party), alleging that he misrepresented himself as the lawful owner of the property and wrongfully received compensation meant for the land affected by the wayleave; and that copies of statements evidencing payment and the Third-Party Notice were annexed to the affidavit. 7. In his view, allowing the application would expose the Respondent to continued operational inefficiencies and repeated compensation claims for the same easement despite compensation having already been paid. Challenging the competency of the intended appeal, the deponent that the Applicants failed to annex a properly signed memorandum of appeal and that expression of a mere intention to appeal cannot suffice. Moreover, contending that the intended appeal has no chance of success, and that the application does not satisfy the requirements of Order 50 Rule 6 of the CPR. He therefore urges the court to dismiss the application with costs, terming it a waste of judicial resources. 8. The motion was canvassed by way of written submissions. The Applicant’s submissions are dated 24.6.2025. The Applicants identify the sole issue for determination to be whether they should be granted leave to appeal out of time under Section 79G of the Civil Procedure Act. The Applicants submit that the court has unfettered discretion to extend time and rely on the Court of Appeal decision in **Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231** on the factors to be considered when extending time, namely the length of delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice to the respondent. 9. Reiterating their affidavit material explaining delay, the Applicants assert it was beyond their control whereas the intended appeal raises arguable points deserving consideration by the High Court. Citing the provisions of Order 2 Rule 15 of the CPR, they challenge the decision of the lower court striking out their suit for alleged non-compliance with the notice to produce dated 25th January 2025. And assert that the lower court improperly exercised this power despite their partial compliance with the notice to produce, in addition to raising other issues which properly belong to the appeal. 10. In conclusion, it is submitted that the Respondent will suffer no prejudice incapable of compensation by an award of costs if the application is allowed. Citing **Joseph Mbenga v Maingi Charles & another [2018] eKLR** in support of the proposition that disputes should, where possible, be determined on their merits rather than terminated on procedural technicalities. They argue that denying them leave to appeal would permanently shut them out from ventilating their grievances despite the existence of arguable issues. 11. By their undated submissions, the Respondent address two key issues, namely whether the Applicants should be granted leave to appeal out of time, and whether the intended appeal has any chance of success,. On the first issue the Respondent relies on Section 79G of the Civil Procedure Act and submits that the discretion to enlarge time must be exercised judiciously and only where sufficient cause is demonstrated. The Respondent emphasizes that the Applicants failed to act diligently despite having been present when the ruling was delivered in open court and that they have not demonstrated any serious effort made to promptly obtain the ruling or file an appeal within time. Citing here the applicable legal principles spelt out in **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, Supreme Court Application No. 16 of 2014 [2014] eKLR**. 12. The Respondent highlighted the principles therein to the effect that extension of time is not a right but an equitable remedy available only to deserving parties, that the burden lies on the applicant to lay a proper basis for the extension sought, that each case must be determined on its own circumstances, and that the applicant must demonstrate reasonable explanation for the delay and absence of undue prejudice to the respondent. 13. The Respondent argues that the Applicants have not satisfied the principles in the **Salat** case because they admittedly obtained the ruling within time but failed to act until after the statutory period had lapsed. According to the Respondent, if the Applicants had genuinely intended to appeal, they could have filed a skeletal memorandum of appeal or sought a certificate of delay. The Respondent reiterated that no credible explanation has been provided for the delay and that no impediment shown as having prevented the Applicants from filing the intended appeal in time. 14. The Respondent further submits that extension of time is ordinarily granted in exceptional circumstances, such as where delay has been officially certified, or occurrence of unforeseen and unavoidable events preventing timely filing are demonstrated. The Applicants’ case, it is argued, does not fall within any such category. The Respondent asserts that the Applicants’ conduct instead demonstrates negligence and lack of diligence, which disentitles them to the equitable relief sought. 15. On the prospects of the intended appeal, the Respondent submits that the appeal has no chance of success because the trial court merely enforced compliance with lawful discovery orders. Hence in its view, the intended appeal raises no arguable point deserving appellate intervention. 16. Reiterating further the likelihood of substantial prejudice to the Respondent as a public corporation tasked with national infrastructure development, it is contended that reopening the matter would expose it to further unnecessary litigation costs and continued operational inefficiencies, ultimately affecting public resources and public interest. **Analysis and Determination** 1. The court having considered the affidavit material and the rival submissions by counsel takes the following view of the matter. 2. The power of the court to enlarge the time for filing an appeal out of time is expressly donated by Section 79G, as well as generally, by Section 95 of the CPA Section 79G of the CPA 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**: 1. The principles governing leave to appeal out of time are settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In **Thuita Mwangi v Kenya Airways [2003] eKLR**, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which was in pari materia with Section 79G of the Civil Procedure Act, reiterated its decision in **Mutiso v Mwangi [1997] KLR 630** as follows: **“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that general the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”** 1. While the discretion of the court is unfettered, a successful applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion in his favor. On the question of the exercise of judicial discretion, the Supreme Court observed in the case of **Telkom Kenya Limited v John Ochanda And 996 Others [2015] eKLR** that: **“In instances where there is delay in filing the notice of appeal, this Court has inherent jurisdiction to admit such appeal, provided sufficient explanation is proffered for the cause of delay. The design and objective of the Supreme Court Rules is to ensure accessibility, fairness and efficiency in relation to this Court. Parties should comply with the procedure, rather than look to the Court’s discretion in curing the pleadings before it. This Court’s position is that the circumstances of each case are to be evaluated, as a basis for arriving at a decision to intervene, in instances where full compliance with procedure has not taken place….”** 1. There is no dispute that the impugned ruling was delivered on 20th February 2025 and that the present application was filed on 27th March 2025. The delay prior to lodging the present motion is therefore slightly over one month from the date of delivery of the ruling and approximately eight days outside the statutory period provided for lodgment of appeals. In my view, such delay cannot be said to be inordinate. 2. The explanation advanced by the Applicants for the delay is that although the ruling was delivered virtually, only part thereof was read, and counsel were directed to access the full ruling through the CTS. The Applicants contend that the ruling was not uploaded until 19th March 2025 and that they had to make follow-up efforts with the court registry before eventually obtaining a copy. The Respondent disputes this explanation and argues that the Applicants ought to have acted with greater diligence, including filing a skeletal memorandum of appeal or seeking a certificate of delay. 3. While it is true that litigants ought to act diligently in their matters, the court must also take judicial notice of the operational difficulties occasionally experienced in accessing court documents through the electronic filing and tracking systems. The Applicants annexed a printout from the CTS confirming the uploading date of the ruling delivered on 20.02.2025 as 19.03.2025, and there is no material tendered to disprove that assertion. In the circumstances, the court is persuaded that the delay has been sufficiently explained and was not occasioned by indolence or deliberate inaction on the part of the Applicants. 4. At this stage, the Court is not called upon to determine the merits of the appeal, but merely to consider whether the intended appeal raises bona fide issues deserving consideration by the appellate court. From the matters canvassed in respect of this motion and perusal of the copy of the (draft) memorandum of appeal, the appeal raises several weighty matters that are worthy of the consideration of the court. 5. Moreover, while the court appreciates the Respondent’s apprehension of likely prejudice it is not persuaded such prejudice cannot adequately be compensated by an award of costs. On the other hand, denial of leave would permanently shut out the Applicants from challenging a ruling that summarily struck out their suit. 6. In the circumstances, the court finds merit in and grants the motion dated 27.3.2025 with costs being awarded to the Respondent in any event. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 14TH DAY OF MAY 2026**  **C. MEOLI** **JUDGE** **In the presence of:** **For the Applicants: Ms. Wangari h/b for Ms. Nduta** **For the Respondent: Ms. Mbogo h/b for Ms. Akelo** **C/A: Lepatei**