https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1585

Wamugi Stationers & Booksellers Ltd v Wachira (Civil Application E045 of 2026) [2026] KECA 1585 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1585 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Application E045 of 2026 K M'Inoti, JA July 31, 2026 Between Wamugi Stationers & Booksellers Ltd Applicant and Kamonji Kang'aru Wachira Respondent (Application for extension of time to appeal from the judgment of the High Court of Kenya at Nyeri (Muchemi, J.) dated 16th May 2024 in HCCC No. E006 of 2022) Ruling 1.The applicant, Wamugi Stationers & Booksellers Ltd., has filed two applications, one dated 19th February 2026 and the other 2nd July 2026. In the first application, the applicant seeks extension of time to appeal from the judgment of the High Court of Kenya at Nyeri (Muchemi, J.) dated 16th May 2024. In the second application, which is described as supplementary to the first, the applicant prays that the notice of appeal filed on 12th June 2024 against the same judgment, be deemed to have been filed on time. This ruling determines both applications. 2.In the affidavit in support of the first application sworn on 15th April 2026 by Priscilla Muiga, a director of the applicant, it is deposed that by the judgment dated 16th May 2024, the High Court dismissed the applicant’s suit against the respondent for breach of a tenancy agreement. The applicant was aggrieved and towards that end, it lodged a notice of appeal on 12th June 2024 and applied for certified copies of judgment and proceedings on 27th June 2024. 3.The proceedings were supplied on 2nd October 2025 but the applicant did not file the record of appeal because it was busy fighting off taxation of the respondent’s bill of costs arising from the judgment of the High Court, including filing an application to set aside an ex parte award of costs and an application for stay of execution. For all that, the applicant blames it previous counsel. 4.The applicant further deposes that the application has been made without inordinate delay, that the intended appeal is not frivolous and that the respondent will suffer no prejudice if the application is granted. 5.In its written submissions dated 6th July 2026, the applicant relies on the decision of the supreme Court in Nicholas Kiptoo Korir arap Sarat v IEBC & 7 Others [2014] eKLR and submits that extension of time is discretionary and equitable. Also relied upon is the decision in Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR on the principles that guide the Court in an application for extension of time, including the length of delay, the reasons for the delay, the prospects of the intended appeal and the prejudice likely to be suffered by the parties. 6.It is also contended that the applicant should not be penalised for mistake of its previous counsel, who filed the notice of appeal out of time and did not inform the applicant about the taxation of costs. 7.The respondent opposed the applications vide a replying affidavit sworn by his advocate, David Kamau Githinji, on 25th June 2026 and written submissions dated 5th July 2026. It is contended that the notice of appeal was filed out of time without leave; that the notice of appeal has never been served upon the respondent’s advocates; that the letter bespeaking the proceedings was sent out of time and was never copied to the respondent’s advocates; and that the applicant’s current advocates are not properly on record. 8.I have carefully considered the two applications. Whether to deem the notice of appeal filed out of time as filed within time as prayed in the second application depends on whether the extension of time prayed for in the first application is granted. If the application for extension of time does not succeed, the second application must suffer the same fate. 9.Initially, I had misgivings regarding the respondent’s replying affidavit, which is sworn by his advocate rather than by the applicant himself. However, it is patently clear that the respondent’s counsel deposed on matters within his own personal knowledge as regards the application before the Court and on issues around the provisions of the Court of Appeal Rules. The principle is that counsel should not depose to contentious matters in the litigation where he is likely to be a witness and subjected to cross-examination. However, counsel can depose on non- contentious matters within his or her knowledge. See Kamlesh Mansukhlal Damji Pattni v. Nasir Ibrahim Ali & 2 Others [2005] eKLR). Nothing turns on that here. 10.Both parties are agreed on the principles that guide the Court in an application for extension of time under rule 4 of the Court of Appeal Rules. Those principles are well articulated by the supreme Court in Nicholas Kiptoo Korir arap Sarat v. IEBC & 7 Others (supra) and this Court in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231. They include:i.extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;ii.a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;iii.whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv.the length of delay;v.the reason(s) for the delay;vi.the prospects of the appeal if the application is granted; andvii.the prejudice that is likely to be suffered by each party. 11.Turning to this application, the judgment in questions was rendered on 16th May 2024. The Notice of Appeal was filed on 3rd July 2024, which was way out of the 14 days prescribed by rule 77(2) of the Court of Appeal Rules. The letter applying for certified copies of the proceedings and judgment was sent on 27th June 2025, more than one year from the date of judgment. The proviso to rule 84 requires a party who wishes to rely on a certificate of delay to send that letter within 30 days from the date of the judgment. Moreover, that letter was neither copied nor served upon the respondent. 12.Having failed to comply with the requirements of the proviso to rule 84, the applicant was required to file the record of appeal within 60 days from the date of the judgment, namely on or before 15th July 2024. Although the record shows that the applicant received the certified copies of the proceedings and judgment on 2nd October 2025, it did not make the first application for extension of time until four months later, and the second application 9 months after receiving the certified documents. 13.Taking into account the fact that the delay involved in this appeal stretches right from the date of judgment on 16th May 2024, to the applicant’s failure to file the notice of appeal within the prescribed period and to 19th February 2026 when it first applied for extension of time, I do find that delay utterly inordinate. 14.The next consideration is the explanation proffered by the applicant to explain the inordinate delay. The explanation is that the applicant was engaged in court fighting off the respondent’s Bill of Costs. I think that constitutes an excuse rather than an explanation, because the applicant does not demonstrate how resisting a Bill of Costs constitutes a disability in term of meeting prescribed deadlines. The two are distinct processes. There is no requirement in law that parties must first finalise taxation of costs before embarking on the appeal process. I reject the applicant’s purported explanation as nothing but a lame excuse. 15.The applicant has also attempted to shift blame to its previous advocates, which tends to nullify the argument that the delay was occasioned by engagement in the Bill of Costs. While, it is true, as eloquently explained in Belinda Murai & 9 Others v. Amos Wainaina, CA No. Nai 9 of 1978 that mistake of counsel may be excused depending on the circumstances of the case, inaction or dilatoriness on the part of counsel is not an excusable mistake. In this case, the applicant does not explain what it considers to be a mistake on the part of its previous counsel. 16.In Habo Agencies Ltd v. Wilfred Odhiambo Musingo [2015] eKLR, this Court held that:“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”(See also Rajesh Rughani v. Fifty Investments Ltd & Another [2016] eKLR and Bains Construction Co. Ltd. v. John Mzare Ogowe [2011] eKLR). 17.Having found that the delay involved in this application and that it has not been satisfactorily explained, I need not dwell on whether or not the intended appeal is frivolous or the issue of prejudice. The applicant has failed to jump the first hurdle, meaning, as explained by the Supreme Court, it has failed to discharge the burden of laying a basis for extension of time, to the satisfaction of the Court. 18.In the circumstances, the two application fail, and are hereby dismissed with costs to the respondent. It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.K. M’INOTI...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR