DOO v MAO (Civil Application E036 of 2025) [2026] KECA 1671 (KLR) (30 April 2026) (Ruling) Neutral citation: [2026] KECA 1671 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPLICATION E036 OF 2025 DK MUSINGA, JA APRIL 30, 2026 BETWEEN DOO ........................................................................................................... APPLICANT AND MAO ....................................................................................................... RESPONDENT (Being an application for extension of time to file a notice of appeal out of time against the judgment of the High Court of Kenya at Nairobi (Ogolla, J.) delivered on 26th June 2024 in High Court Children Appeal No. E039 of 2022) RULING 1. The applicant’s Notice of Motion dated 28th January 2025 seeks leave to le a notice of appeal and record of appeal from the judgment delivered on 26th June 2024 in High Court Civil Appeal No. E039 of 2022. The applicant further prays that the notice of appeal and the draft memorandum of appeal annexed and led together with the application be deemed as having been led and served appropriately. 2. In his adavit in support of the application, the applicant states, inter alia, that although the judgment was delivered on 26th June 2024, prior to its delivery there were conicting notications and correspondence from his former advocates as to the delivery date of the judgment, the delivery having been adjourned severally. His former advocate had told him that judgment would be delivered on 9th September 2024 but subsequently told him that it would be delivered on 24th October 2024, and on the aforesaid date, he reached out to his advocate to enquire about the judgment, who responded via a text message that it would be delivered on 17th December 2024. Thereafter, he engaged his current advocates, Wanjiru Gachohi & Co., who informed him that upon her inquiry via the court’s online Case Tracking System, she ascertained that the judgment had been delivered on 26th June 2024. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1671/eng@2026-04-30 1
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3. Surprised by the turn of events, the applicant contacted its former advocate, who told him that he was not aware that the judgment had been delivered. The applicant blames his former advocate for the delay in ling the notice of appeal since he had not notied him about delivery of the judgment. 4. Regarding the chances of success of the intended appeal, the applicant states that originally the Magistrate’s court had ordered him to provide upkeep for his minor children in the sum of Kshs. 20,000 per month, but on appeal to the High Court by the respondent, the monthly maintenance sum was increased to Kshs. 60,000, which is inordinately high, considering his other nancial commitments. 5. Lastly, the applicant argues that neither the respondent nor the children will suer any prejudice if the orders sought are granted. 6. The advocates for the parties were served with the hearing notice on 12th March 2026 indicating that the application will be heard on 18th March 2026. The hearing notice indicated that no appearance by counsel would be required since the application would be disposed of by way of written submissions. They were therefore required to put in their submissions. 7. When the application came up for hearing on the aforesaid date, none of the parties had led any submissions. The respondent had also not led any response to the application. 8. I have carefully considered the application. In an application for extension of time under rule 4 of this Court’s Rules, the Court exercises unfettered discretion, which must however be based on sound principles. Among the considerations that the Court takes into account are, the lengthy of the delay; the reasons for the delay; possibly the chances of success of the intended appeal; and the degree of prejudice that the respondent is likely to suer if the orders sought are granted. See Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231. 9. The impugned judgment was delivered on 26th June 2024, but the applicant, who was previously represented by one Joseph Njoroge Mungai Advocate, did not know that the judgment had been delivered until 20th December 2025. He got that information when he engaged Messrs Wanjiru Gachohi & Co. advocates. The new advocates moved with speed and led this application as well as a draft notice of appeal and a draft memorandum of appeal on 28th January 2025. 10. It is therefore evident that the period of delay is not inordinate and is attributable to the misleading information that was given to the applicant by his previous advocate. 11. From the draft memorandum of appeal annexed to the application, the intended appeal is not frivolous. As no stay of execution of the impugned judgment has been granted, I do not think that the respondent and the minor children will be prejudiced if the orders sought are granted. 12. Consequently, I allow the applicant’s notice of motion dated 28th January 2025, but direct the applicant to le and serve a notice of appeal and the record of appeal within thirty (30) days from the date of delivery of this ruling. I make no order as to costs of the application. DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2026. D. K. MUSINGA (PRESIDENT) ................................. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1671/eng@2026-04-30 2
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I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1671/eng@2026-04-30 3
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