Mbogoh v Chironda

the trial court and a stay of proceedings pending the intended appeal. The Appellant, contended that neither he nor his advocate was aware of the delivery of the Ruling as it was initially scheduled for delivery on earlier dates which did not materialize and that, therefore, the Ruling was delivered in their absence. 5. The application was opposed by the Respondent who argued that the delay was inordinate and unexplained, and that the Appellant had not demonstrated diligence in following up the delivery of the Ruling. The Respondent further contended that the trial Magistrate had properly exercised judicial discretion in granting the review and reopening the case. 6. The Environment and Land Court considered the application, the adavits on record, and the parties’ written submissions and, in a Ruling delivered on 21st February 2024, found that the Appellant had failed to satisfactorily explain the delay in ling the intended appeal, and had not demonstrated that the Ruling of the trial court was delivered without his or his advocate’s knowledge. The Court further held that the Magistrate had properly exercised discretion in granting the review. 7. On the explanation advanced by the Appellant, the learned Judge found that, although the trial court’s Ruling was initially not delivered on the scheduled dates, the Appellant failed to demonstrate what steps, if any, were taken to follow up on the delivery of the ruling after the earlier dates lapsed. The court held that there was no evidence tendered to show that the Ruling of 3rd May 2023 was delivered without the knowledge of the Appellant or his counsel, or that the subordinate court deliberately failed to notify the parties, or that the delay between 3rd May 2023 (the date of the impugned ruling) and 3rd July 2023 (the date when the application for leave was led) were satisfactorily explained. More importantly, the court noted that the primary suit had not been conclusively determined on its merits following the reopening, and that the matter remained active before the trial magistrate’s court. As such, the court saw no justication to halt or interfere with the ongoing proceedings through an appeal led out of time. 8. In the nal analysis, since the Appellant had not met the legal threshold for the grant of leave to appeal out of time, the Notice of Motion dated 3rd July 2023 was dismissed with costs. 9. Aggrieved, the Appellant has led an appeal to this Court on grounds that: the learned Judge was in error in law and in fact by holding that the Appellant did not show or demonstrate that the trial court delivered the impugned Ruling on 3rd May, 2023, without the knowledge of the Appellant or his counsel; in pronouncing itself on the motion dated 3rd July, 2023, as if the application was the appeal against the Ruling of the trial magistrates court, rather than on an application seeking for leave to appeal against the Ruling out of time; in failing to exercise the court’s wide discretion to grant the Appellant leave to appeal against the Ruling dated 3rd May, 2023 and in dismissing the Appellant’s application with costs. 10. When the appeal came up for hearing, learned counsel Mr. Lewa appeared for the Appellant while learned counsel Ms. Omollo appeared for the Respondent. 11. In their written submissions, counsel for the Appellant submitted that the primary suit, Kili CMCC No. 176 of 2018, had been struck out by the trial court on 14th September 2021, and that the Respondent moved the court for review some fourteen (14) months later; that, thereafter, the trial court’s ruling of 3rd May 2023 allowing the review application was delivered without notice, and in the absence of both the Appellant and his counsel and that, by the time the Appellant became aware of the ruling, the statutory period for ling an appeal had already lapsed. It was further submitted that the learned Judge misapprehended both the facts and the law by holding that the Appellant had failed to demonstrate that the Ruling of 3rd May 2023 was delivered without his knowledge or that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1753/eng@2026-09-25 2

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of his advocate, and that the Judge ignored undisputed evidence explaining the sequence of events surrounding the scheduled delivery dates of the ruling and the subsequent public holiday. 12. Counsel further submitted that the learned Judge was wrong to treat the application for leave to appeal out of time as though it were the substantive appeal itself, thereby requiring the Appellant to challenge the merits of the trial court’s ruling prematurely, which amounted to an improper exercise of judicial discretion. 13. In their written submissions, counsel for the Respondent submitted that the appeal lacked merit, and that the learned Judge properly exercised his judicial discretion in dismissing the Appellant’s application for leave to appeal out of time; and that the trial court correctly identied the applicable legal principles and applied them to the facts before it. It was further submitted that the Appellant was under a duty to diligently prosecute his case and follow up on the delivery of the Ruling once the initially scheduled dates did not materialise. Reliance is placed on Rajesh Rughani vs Fifty Investments Limited & Another [2016] eKLR for the proposition that litigants bear responsibility for actively pursuing their matters. 14. On delay, counsel argued that the period between April/May 2023 and the ling of the application on 3rd July 2023 was neither adequately explained nor excusable, and that the Appellant failed to suciently explain the delay. It was argued that the right of appeal does not override compliance with procedural requirements, and that the Appellant cannot rely on his own negligence to obtain relief. It is submitted that the learned Judge correctly found that no sucient basis had been laid to warrant the exercise of discretion in favour of the Appellant. 15. Having considered the Ruling, the subject of this appeal, the grounds contained in the Memorandum of appeal and the rival submissions by counsel, it is evident that the issues in contention arise from an exercise of discretion. 16. In the case of Mbogo & Another vs Shah [1968] EA. 93, 96 it was held that: “An appellate court will interfere if the exercise of the discretion is clearly wrong because the Judge consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. It is trite misdirected himself or acted on matters which it should not have acted upon or failed to take into law that an appellate court should not interfere with the exercise of the discretion of a judge unless it is satised that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.” 17. Summarizing the above principles in the latter case of United India Insurance Co Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd vs East African Underwriters (Kenya) Ltd [1985] eKLR, Madan JA (as he then was) stated thus: “ The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at rst instance, would or might have given dierent weight to that given by the judge to the various factors in the case. (It) is only entitled to interfere if one or more of the following matters are established: rst, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fthly, that his decision, albeit a discretionary one, is plainly wrong." https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1753/eng@2026-09-25 3

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18. Bearing in mind the above guidance, the issues arising for determination are: i) Whether the learned Judge was in error in nding that the Appellant had failed to satisfactorily explain the delay in ling the intended appeal; ii) Whether the learned Judge misdirected himself by considering the merits of the intended appeal beyond what was necessary in an application for leave to appeal out of time; and iii) Whether the learned Judge properly exercised his discretion in declining to grant the Appellant leave to appeal out of time against the Ruling of 3rd May 2023. 19. With regard to lodging of appeals, Section 79G of the Civil Procedure Act provides that: “ Every appeal from a Subordinate court to the High Court shall be led 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 to the appellant of a copy of the decree or order. Provided that an appeal may be admitted out of time if the appellant satises the court that he had a good and sucient cause for not ling the appeal in time”. 20. Similarly, in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, this Court in considering an application for extension of time and leave to le the Notice of Appeal out of time stated that: “ .......it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for ling an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 21. In the case of Phelister Masista Masheti & another vs Arnold Sitati Bwisa & another [2017] KECA 450 (KLR), this Court held: “ …the discretion exercisable under section 79G more stringent since it requires that the court can only extend time when it is satised that there is "good and sucient cause." As stated in the Indian Supreme Court case of Parimal v. Veena [2011] 3 SCC 545: “Sucient cause means that a party had not acted in a negligent manner or there was want of bona des on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been ‘not acting diligently’ or ‘remaining inactive’. However, the facts and circumstances of each case must aord sucient grounds to enable the Court concerned to exercise discretion for the reason that wherever the Court exercises discretion, it has to be exercised judicially”. 22. There is also a duty now imposed on courts to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and aordable resolution of disputes before the court. See Charles Karanja Kiiru vs Charles Githinji Muigwa [2017] KECA 131 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1753/eng@2026-09-25 4

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23. Turning to the rst issue of whether the learned Judge was in error in nding that the Appellant had failed to satisfactorily explain the delay in ling the intended appeal, in the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi NAI CA 255/1997, this Court held: “It is now well settled the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: rst the length of the delay; secondly the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is grant; and fourthly the degree of prejudice to the respondent if the application is granted” 24. The record shows that the impugned ruling of the trial court was delivered on 3rd May 2023. The application seeking leave to appeal out of time was led on 3rd July 2023, approximately two months later. The Appellant's explanation for the delay was that neither he nor his advocate was aware of the delivery of the Ruling because it had previously been scheduled for delivery on other dates which did not materialize, and that it was eventually delivered without notice to them. The learned Judge considered this explanation and found that no material had been placed before the court to demonstrate that the subordinate court delivered the Ruling without notice to the parties, or that the Appellant had taken any steps to follow up the matter after the earlier scheduled dates had passed. The Judge was not persuaded that the explanation oered accounted satisfactorily for the entire period of delay. 25. A consideration of the explanation tendered shows that it was a bare assertion unsupported by any evidence demonstrating diligence on the part of the Appellant or his advocate. In those circumstances, the learned Judge cannot be faulted in reaching the conclusion that the delay was not satisfactorily explained. 26. As to whether the learned Judge misdirected himself by considering the merits of the intended appeal beyond what was necessary in an application for leave to appeal out of time, in determining whether to extend time, a court is entitled to consider, albeit on a prima facie basis, whether the intended appeal is arguable. A consideration of the Ruling discloses that the learned Judge merely examined the nature of the intended appeal and observed that the trial court had properly exercised judicial discretion under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and that no apparent basis had been shown for interference by the appellate court pursuant to that exercise of discretion. Such consideration was relevant to the determination of the application and did not amount to a nal determination of the intended appeal. 27. The third issue is whether the learned Judge properly exercised his discretion in declining to grant leave to appeal out of time. As already stated, the grant of leave to appeal out of time is a discretionary remedy. According to the record, the learned Judge identied the applicable legal principles, considered the explanation for delay, examined the nature of the intended appeal, and weighed the competing interests of the parties before arriving at his decision. There is nothing to suggest that he acted on wrong principles, considered irrelevant matters, or failed to consider relevant matters. The mere fact that this Court may have reached a dierent conclusion is not, of itself, a basis for interfering with the exercise of discretion. 28. In the nal analysis, we nd that no basis has been laid for interfering with the exercise of that discretion by the learned Judge. In the result, there is no merit in the appeal which we hereby dismiss with costs to the Respondent. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1753/eng@2026-09-25 5

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DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR JUDGE OF APPEAL ................................. DR. K. I. LAIBUTA CArb, FCIArb. JUDGE OF APPEAL ................................. I certify that this is the true copy of the original signed G. W. NGENYE-MACHARIA JUDGE OF APPEAL DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1753/eng@2026-09-25 6

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