https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12684

Wanjiku v Maigachu (Small Claims Appeal E294 of 2025) [2026] KEHC 12684 (KLR) (Civ) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12684 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Small Claims Appeal E294 of 2025 WA Okwany, J July 30, 2026 Between Margaret Wanjiku Appellant and Pastor Milka Maigachu Respondent Ruling 1.This ruling is in respect to the Notice of Motion dated 25th July 2025 wherein the Applicant seeks leave to file her appeal out of time and an order deeming the Memorandum of Appeal filed on 25th June 2025 as duly filed and properly on record. The Application is brought under Sections 1A, 1B, 3A and 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. 2.The application is supported by the affidavit of Pharis Mbugua Munyiri, Advocate for the Applicant who deposes that the impugned judgment in Small Claims Court Case No. E4792 of 2025 was delivered on 23rd May 2025 and that the statutory period for filing an appeal expired on 23rd June 2025. He explains that despite attempts to file the appeal within time, the Judiciary's Case Tracking System (CTS) became inaccessible on the last day for filing, thereby preventing counsel from lodging the appeal. The Memorandum of Appeal was eventually filed on 25th June 2025, resulting in a delay of only two days. Counsel attributes the delay entirely to technical challenges beyond the Applicant's control and avers that the Respondent will suffer no prejudice if the orders sought are granted. 3.In her written submissions, the Applicant submits that the delay was neither deliberate nor inordinate and that the Court ought to exercise its discretion in favour of substantive justice. Reliance was placed on Section 79G of the Civil Procedure Act, Order 50 Rule 6 of the Civil Procedure Rules and several decisions including Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, County Executive of Kisumu vs. County Government of Kisumu & 8 Others [2017] eKLR and Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997, for the proposition that extension of time is discretionary and depends on the length of delay, the explanation offered, the arguability of the intended appeal and the prejudice likely to be occasioned to the opposite party. 4.It was submitted that the intended appeal raises arguable issues and that the Respondent can adequately be compensated by costs. The Respondent's Case 5.The Respondent opposed the application through the Replying Affidavit sworn on 4th November 2025. She contends that the application is incompetent and an abuse of the court process as the Applicant filed an appeal out of time without first obtaining leave of the Court contrary to Section 79G of the Civil Procedure Act. She further avers that the Memorandum of Appeal is undated and therefore fatally defective; that the Applicant has failed to annex the intended Memorandum of Appeal to the present application; and that the allegations regarding the Judiciary's CTS being inaccessible have not been substantiated by any documentary evidence. She maintains that litigation must come to an end and that the Applicant has merely sought to sanitize an irregular filing. 6.In her written submissions, the Respondent reiterates that the appeal was filed out of time and without leave and therefore no competent appeal exists before the Court. Reliance is placed on Section 79G of the Civil Procedure Act, Section 107 of the Evidence Act, Alphonce Mbinda Musyoki vs. Party of National Unity (PNU) & 2 Others [2021] eKLR and Charterhouse Bank Ltd (Under Statutory Management) vs. Frank N. Kamau [2016] eKLR. 7.it was submitted that the Applicant has failed to prove the alleged CTS failure, has not demonstrated an arguable appeal and has failed to satisfy the principles governing enlargement of time. The Respondent accordingly urged the Court to dismiss the application with costs. Analysis and Determination 8.I have carefully considered the application, the affidavits on record, the rival submissions and the authorities cited. I find that the only issue for determination is whether the Applicant has established sufficient cause to warrant extension of time under Section 79G of the Civil Procedure Act. 9.Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against. The proviso thereto empowers the Court to admit an appeal filed out of time if the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal within the prescribed period. Equally, Order 50 Rule 6 of the Civil Procedure Rules confers upon the Court discretion to enlarge time where sufficient cause is shown. 10.The principles governing extension of time are now settled. In Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court held that extension of time is an equitable remedy granted at the discretion of the Court, the applicant being required to satisfactorily explain the delay and demonstrate that the same is not inordinate. 11.In the present case, the Applicant attributes the delay to technical difficulties experienced on the Judiciary's electronic filing platform. Although the Respondent faults the Applicant for failing to produce documentary proof of the alleged CTS downtime, I note that the delay in question is only for two days. I find that such delay cannot, by any reasonable standard, be described as prolonged or inordinate. 12.This Court is alive to the fact that electronic filing has become an integral part of the administration of justice and that occasional technical interruptions are not uncommon. While it would have been desirable for the Applicant to place before the Court documentary evidence demonstrating the alleged system failure, I am of the view that the explanation offered is not inherently implausible. More importantly, the Respondent has not demonstrated that she stands to suffer any prejudice incapable of compensation by an award of costs should the extension be granted. 13.This Court is also guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution, which enjoin courts to administer justice without undue regard to procedural technicalities. The discretion to extend time ought to be exercised to facilitate substantive justice where no injustice will be occasioned to the opposite party. 14.The Respondent's argument that the appeal is incompetent because it was filed before leave was sought is not without force. Nevertheless, the Applicant has expressly sought an order deeming the Memorandum of Appeal already filed as properly on record upon enlargement of time. Courts have, in appropriate circumstances, regularized such filings where sufficient cause has been established. The present application is therefore not rendered incompetent merely because the Memorandum of Appeal preceded the application for leave. 15.Taking into account the short duration of the delay, the explanation tendered, the absence of demonstrated prejudice to the Respondent and the need to afford parties an opportunity to ventilate their disputes on the merits, I am persuaded that this is an appropriate case for the Court to exercise its discretion in favour of the Applicant. 16.Consequently, I find merit in the Notice of Motion dated 25th July 2025 and make the following orders:a.Time for filing the appeal is hereby enlarged.b.The Memorandum of Appeal filed on 25th June 2025 is hereby deemed as duly filed and properly on record upon payment of the requisite.c.Costs of the application shall abide the outcome of the appeal. 17.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026HON W A OKWANYJUDGE