Wambugu v Waweru (Small Claims Appeal E170 of 2025) [2026] KEHC 9097 (KLR) (Civ) (25 June 2026) (Ruling)

Wambugu v Waweru (Small Claims Appeal E170 of 2025) [2026] KEHC 9097 (KLR) (Civ) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9097 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E170 of 2025 JC Mutai, J June 25, 2026 Between Christopher Maina Wambugu Appellant and Joakim Waweru Respondent Ruling 1.Before me is a Notice of Motion dated 25th July 2025, filed under a Certificate of Urgency and brought under Section 38 of the Small Claims Court Act, Section 79G of the Civil Procedure Act, and Orders 9 Rule 9, 42, 50 Rule 6 and 51 of the Civil Procedure Rules, 2010. 2.The Applicant, Christopher Maina Wambugu, seeks the following orders:a.Spent.b.Spent.c.Spent.d.That leave be granted to file the attached Memorandum of Appeal out of time.e.That pending the hearing and determination of the intended appeal, an order of stay of execution of the judgment and decree of the trial court delivered on 13th December 2024 be granted.f.That the Applicant be granted leave to adduce additional evidence in the form of a title deed issued after the claim had been filed, together with other documents from the Lands Registrar, to demonstrate that the alleged sale of L.R. No. 21137/6 did not occur as claimed.g.That costs of the Application be provided for. 3.The intended appeal arises from the judgment and decree of the Small Claims Court atNairobi in SCCCOMM/4620/2024 delivered on 13th December 2024. 4.The Motion is supported by the Applicant’s Supporting Affidavit sworn on 25th July 2025. The Applicant depones to the history of the matter before the Small Claims Court and states that at the time judgment was delivered, he was unwell and therefore unable to instruct his then advocates to file an appeal within time. In support thereof, he annexed medical documents. Applicant’s Case 5.In support of the Motion, learned counsel for the Applicant, M/s Pharis & Co. Advocates, filed written submissions and a list of authorities dated 25th February 2026. Counsel relied on, inter alia, the cases of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others, Oduori & Nagemi (Environment & Land Appeal No. E013 of 2024), Attorney General v Law Society of Kenya & Another and Kenya Medical Lab Technicians & Technologists Board v Prime Communications Limited, which set out the principles applicable in applications for extension of time, namely:i.the length of the delay;ii.the reason for the delay;iii.the arguability of the intended appeal; andiv.the degree of prejudice likely to be suffered by the respondent if the orders sought are granted. 6.The Applicant urged the Court to allow the Motion. Respondent’s Case 7.The Motion was opposed through a Replying Affidavit sworn on 1st December 2025 by Joachim Waweru, the Respondent, who deponed that the Application is an abuse of the court process, misconceived, and devoid of merit. 8.The Respondent further deponed that the decree sought to be stayed is a money decree and that any security to be furnished ought to be monetary in nature and not in the form of a title deed. 9.Learned counsel for the Respondent, M/s Mutwa & Obado Advocates, filed written submissions dated 16th February 2026 and relied on the authority of Onesmus Mburu Njuguna v Simon Kitire Kuna alias Samson Keter. Issues for Determination 10.The sole issue for determination is:Whether the Applicant has satisfied the conditions for grant of leave to file an appeal out of time.Analysis and Determination 11.Section 79G of the Civil Procedure Act provides:“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 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.” 12.It is clear from the wording of Section 79G of the Civil Procedure Act that before the Court considers extension of time, an applicant must satisfy the Court that he has good and sufficient cause for filing the appeal out of time. This principle was reiterated in Dilpack Kenya Limited v William Muthama Kitonyi, where the Court held that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal out of time must demonstrate sufficient cause. 13.The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that:“The underlying principles a court should consider in exercise of such discretion should include:a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether, in certain cases, public interest should be considered.” 14.Similarly, in Paul Musili Wambua v Attorney General & 2 Others, the Court of Appeal stated:“It is now settled by a long line of authorities that the decision whether or not to extend time for filing an appeal is discretionary. In exercising that discretion, the court must act judicially and not on whim or caprice. The factors generally considered are the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.” 15.In determining whether to grant an extension of time, the Court considers, inter alia:i.the length of the delay;ii.the reason for the delay;iii.the chances of the intended appeal succeeding; andiv.the degree of prejudice to the respondent if the application is granted. 16.With regard to the length of and reasons for the delay, I find that the delay in lodging the intended appeal has not been satisfactorily explained. I agree with counsel for the Respondent that no sufficient explanation has been offered for the inordinate delay. See Abdul Azizi Ngoma v Mungai Mathayo [1976] eKLR. 17.The Court of Appeal in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR observed that:“…the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour.” 18.I have carefully perused the Applicant’s Supporting Affidavit. The record shows that judgment was delivered on 13th December 2024 and that the Applicant had initially been granted conditional stay orders, which subsequently lapsed. The Applicant attributes the delay to ill health and inability to issue instructions to counsel. 19.However, I note that the medical documents annexed relate to the period between October and November 2024, which was prior to delivery of the judgment. The Applicant has not satisfactorily explained the delay between December 2024, when judgment was delivered, and July 2025, when the present Application was filed. 20.I have perused the intended Memorandum of Appeal alongside the judgment of the trial court and note that the intended appeal does not raise any arguable issues of law. Further, an appeal from the Small Claims Court to the High Court lies only on matters of law pursuant to Section 38 of the Small Claims Court Act. The grounds set out in the Memorandum of Appeal largely concern factual findings by the trial court. 21.Accordingly, the intended appeal does not appear arguable and its prospects of success are limited. In the circumstances, I find that the Applicant has not established sufficient cause to warrant enlargement of time. 22.Further, I am satisfied that reopening the matter after considerable and unexplained delay would occasion prejudice to the Respondent, who is entitled to the benefit and finality of the judgment delivered in his favour. FINAL ORDERS 23.Having carefully considered the Motion, the affidavits on record, and the rival submissions by counsel, I reach the conclusion that the delay in approaching this Court for extension of time has not been satisfactorily explained. Consequently, the Motion lacks merit and is hereby dismissed with costs to the Respondent. 24.Having dismissed the Application for extension of time, the substratum upon which the ancillary prayers for leave to adduce new evidence, stay of execution and provision of security were founded no longer exists. The said prayers were dependent on the existence of a competent appeal and, in the circumstances, they are rendered moot, spent, and overtaken by events. Accordingly, no further determination on those prayers is necessary. Judgement delivered virtually on 25th Jun 2026 ★ THE JUDICIARY OF KENYA ★HON. LADY JUSTICE CHELANGAT MUTAIIn the presence of;Obado for the Respondent N/A for the Appellantsigned by/for:Milimani High CourtHigh Court Civil Appellate Division Date: 2026-06-25 13:14:28The Judiciary of Kenya