Okutoyi v West Kenya Sugar Company Limited & another

3. The applicant detailed the events that took place in the High Court before and after delivery of the impugned judgment. According to the applicant, the High Court had issued directions on 31st October 2025 that judgment would be delivered on 26th November 2025 which did not happen, and when he visited the High Court’s registry on 26th March 2026, he was informed the judgment was delivered on 28th January 2026 in the absence of the parties. The time to le the Notice of Appeal had accordingly lapsed on 10th February 2026. The applicant accordingly averred that the failure to attend Court when the judgment was delivered was neither deliberate or intentional, and he will suer great prejudice if the extension of time sought is not granted. 4. M/S Mukisu &Company Advocates, the applicant’s advocates on record, led written submissions dated 29th May 2026 in which various decisions of the Supreme Court and of this Court were cited, including Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, Donald Odhiambo Rabala vs Judicial Service Commission & Another [2020] eKLR, Njoroge vs Kimani (Civil Application Nai E049 of 2022), and Ngei vs Kibe & another (Civil Appeal (Application) E359 of 2021). The advocates urged that that the delay was caused by the court's failure to communicate the judgment date; the 62- day delay was not inordinate or intentional, noting that they had since requested certied copies of proceedings and decree; and no prejudice will be caused to the respondents if the extension is granted, and it is in the interest of justice that their right to appeal be upheld. 5. As at the time of writing this ruling, the respondents had not yet led any response or written submissions and there was non-compliance of directions given in this regard. This application is therefore unopposed. Rule 58 (2) of the Court of Appeal Rules in this regard stipulates that if an applicant appears or complies and the respondent fails to appear or comply, the application shall proceed in the absence of the respondent, unless the Court sees t to adjourn the hearing. There was no request for adjournment of the hearing on record when I heard the application in chambers in the absence of the parties on 6th July 2026. 6. I have considered the pleadings and arguments put forth by the applicant. The principles that apply to an application for extension of time under Rule 4 of the Court of Appeal Rules of 2022 have been the subject of many decisions of this Court and the Supreme Court of Kenya. In summary, this Court conrmed in the case of Leo Sila Mutiso vs Rose Hellen Wangare Mwangi (1999) 2 EA 231, that the decision whether or not to extend time for appealing is essentially discretionary, taking into account the length of delay and reason for the delay. 7. In the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others, Supreme Court of Kenya Application (supra), the Supreme Court set down the underlying principles that a Court should consider in exercising its discretion as being: “ 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 an 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. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2085/eng@2026-07-17 2

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8. v. Whether the respondents will suer any prejudice if the extension is granted; vi. Whether the application has been brought without undue delay; and vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time." The Supreme Court also pronounced as follows in the case of Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR: “ the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 9. I note that the applicant led its Notice of Appeal on 7th April 2026, which entailed a delay of ftyve (55) days outside the 14 days’ prescribed by Rule 77(2) of the Court of Appeal Rules of 2022 . Time in this regard started to run with delivery of the judgment by the High Court on 28th January 2026, and lapsed on 11th February 2026. The explanation for the delay was that the judgment was delivered without notice and in the absence of the parties, and the applicant was not aware of the judgment in good time, which explanation is not disputed by the respondents. In addition, the instant application for extension of time was led on 7th April 2026, two months after the delivery of the impugned judgment, and one week after the applicant was made aware of the judgment. 10. I am therefore persuaded that sucient cause for the delay in ling the application for leave has been demonstrated by the applicant, and that the delay was not inordinate in the circumstances. The respondents have in addition not demonstrated the prejudice they will suer if the extension for time is granted. Consequently, the application dated 7th April 2026 is found to be merited. The applicant is accordingly granted leave to le and serve the Notice of Appeal dated 7th April 2026 out of time against the judgment delivered on 28th January 2026 by the High Court at Kakamega (S. Mbungi J.) in Civil Appeal No. E169 of 2023. The applicant shall le and serve the said Notice of Appeal within thirty (30) days of the date of delivery of this ruling. There shall be no orders as regards the costs of the application. 11. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF JULY 2026. P. NYAMWEYA …………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2085/eng@2026-07-17 3

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