Wanjiru v Wahome

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***(Coram: A. C. Mrima, J.)*** **MISC. CIVIL APPLICATION NO. E307 OF 2025** ***-between-*** **VENESSA WANJIRU………..…..…………………………………………APPLICANT** ***-versus-*** **SAMUEL WAITHAKA WAHOME…………………….………...…...RESPONDENT** **RULING** **Background:** 1. The dispute herein originates from *Nairobi [Milimani] Small Claims Court Case No. 6208 of 2023* [hereinafter referred to as ***‘the suit’***], where the Applicant herein, *Vanessa Wanjiru Ng’ang’a,* was the Claimant and *Samuel Waithaka Wahome,* the Respondent herein, was the Respondent. 2. The suit was partly heard before the trial Court on 16th May 2024 and 15th August 2024. On 22nd October 2024, the Honourable Adjudicator dismissed the suit for non-attendance after neither the Applicant nor her Counsel appeared before the Court. The Applicant then approached this Court *vide* an application which is the subject of this ruling. **The Application:** 1. By way of a Notice of Motion dated 29th October 2025, the Applicant approached this Court seeking the following orders: - * 1. *THAT this Honourable Court be pleased to grant leave to the Applicant to file an appeal out of time against Ruling and Order of Hon. Kiongo Kagenyo (Mr.) (SRM) delivered on 22nd October 2024 in Nairobi Small Claims Court Case No. 6208 of 2023.* 2. *THAT upon grant of leave, the annexed Memorandum of Appeal be deemed as duly filed and served.* 3. *THAT costs of this application do abide the outcome of the intended appeal.* 2. The application was grounded on the premise that the suit’s dismissal on 22nd October 2024 was not deliberate, but was occasioned by the Applicant’s Counsel being engaged before another Court when the matter was called out. The Applicant averred that she moved with promptitude immediately upon learning of the dismissal but was unable to lodge the appeal within the statutory period because a former Advocate who handled the matter left the firm and failed to notify the Applicant or the firm about the dismissal. 3. The Applicant further contended that the delay was beyond her control and that the intended appeal raises arguable issues. She claimed that the Respondent would suffer no prejudice if the orders were granted. 4. In the Supporting Affidavit sworn by *Julia Kariuki* on 29th October 2025, the deponent reiterated that both the Applicant and the firm remained unaware of the dismissal until much later when the file was reviewed. It was deposed that the delay in filing the appeal was inadvertent and solely caused by the former advocate’s omission to update the firm and the client. **The Respondent’s case:** 1. *Samuel Waithaka Wahome* opposed the application through his Replying Affidavit sworn on 11th December 2025. He deposed that the application was an afterthought, bad in law, incompetent, and a blatant abuse of the Court process. He contended that the Applicant advanced flimsy reasons lacking legal basis and that the application was brought in bad faith to delay justice and waste judicial resources. 2. The Respondent further averred that the Applicant had an opportunity to file for the reinstatement of the suit but instead chose to initiate an appeal one year and two months after the impugned ruling. He maintained that the Applicant demonstrated a lack of interest in prosecuting her own case and that her ignorance of the dismissal for over a year is unacceptable in law. 3. Finally, he deposed that the timelines within the Small Claims Act aim to ensure matters are heard within 60 days, and granting the application would frustrate the expeditious administration of justice. **The Parties’ Submissions:** 1. On 26th January 2026, *Ms. Wangoi* and *Ms. Chamwada;* Advocates for the Applicant and Respondent respectively, agreed to waive the filing of submissions thereby leaving the matter for determination. **Analysis and Determination:** 1. Having considered the pleadings, the singular issue for determination is whether the Applicant has established good and sufficient cause to warrant the Court’s exercise of discretion in extending the time to file the appeal out of time. 2. An appeal from decisions of the Small Claims Court lie to the High Court and are governed by the *Civil Procedure Act* and the *Rules* made thereunder. *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 to this section dictates that an appeal may be admitted out of time if the appellant satisfies the Court that there was good and sufficient cause for not filing the appeal within the prescribed time. 3. The Supreme Court in ***Nick Salat -vs- Independent Electoral and Boundaries Commission & 7 others***(Application 16 of 2014) [2014] KESC 12 (KLR) affirmed that the filing of a timely notice of appeal is a jurisdictional prerequisite meant to promote the finality of judgments. The Court further emphasized that the extension of time is an equitable discretionary power and an applicant must lay a proper basis demonstrating that they were not at fault for allowing time to lapse. 4. Additionally, in **Leo *Sila Mutiso -vs- Rose Hellen Wangari Mwangi***Civil Application No. Nai. 255 of 1997, a decision approvingly cited by the Apex Court, the factors a Court considers when exercising discretion are; the length of the delay, the reason for the delay, the degree of prejudice to the respondent if granted, and the chances of the appeal succeeding. 5. Applying these principles to the present circumstances, the impugned ruling dismissing the suit was delivered on 22nd October 2024. The Applicant’s Notice of Motion was filed on 29th October 2025. It constitutes a delay of over one year, vastly exceeding the statutory 30-day window. 6. Regarding the reason for the inordinate delay, the Applicant blamed a former Advocate who departed the firm without communicating the dismissal, resulting in the Applicant being unaware until much later. However, an applicant bears the burden to explain the delay to the satisfaction of the Court. The Applicant notably failed to disclose the specific date when she became aware of the dismissal. Relying on broad and vague assertions of inadvertent omission does not offer satisfactory explanation. 7. More importantly, if this Court were to exercise its discretion favourably, the Applicant ought to have availed cause lists of the said day of the two Courts to substantiate that indeed their firm had two matters handled by the said advocate on the fateful day. 8. In the ***Nick* *Salat***case [supra] the Apex Judges remarked the significance of time in the following manner; *…. Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigants’ legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined.* 1. Coming back to the circumstances of the case, as correctly noted by the Respondent, a litigant’s unawareness of their own matter for over a year demonstrates a severe failure to proactively prosecute their suit. Deflecting blame entirely to a former advocate without providing a precise timeline of discovery and substantiation that led to the oversight in the form of cause lists does not amount to a reasonable explanation, and does not lay a sufficient basis to show the Applicant acted without fault. 2. Therefore, the Respondent rightly argued that the Small Claims Court Act is designed for the swift resolution of disputes within a 60-day timeframe. Reopening a dispute that was dismissed over a year ago, without a cogent explanation for the delay, would undoubtedly subject the Respondent to undue prejudice and defeat the statutory objective of expedition and finality. 3. Consequently, this Court finds that the Applicant has failed to discharge the burden of proving good and sufficient cause to warrant the equitable relief of an extension of time. **Disposition:** 1. In view of the foregoing analysis, this Court finds that the Notice of Motion dated 29th October 2025 is without merit and is hereby dismissed in its entirety with costs to the Respondent. Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **September, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Ms Wanjui** holding brief for Ms Oyugi,LearnedCounsel for the Applicant. **Mr. Chamwada,** Learned Counsel for the Respondent. **Michael/Amina** –Court Assistants.