Oyoo v Sijenyi & 2 others (Environment and Land Miscellaneous Application E084 of 2025) [2026] KEELC 1637 (KLR)

3. The application is opposed. The Respondent filed a replying afidavit sworn on 27th December 2025. He stated that the allegations by the applicant are false because the advocate filed submissions on the Preliminary objection on 2nd September 2025 and served the same on the same day, hence he was awre of the ruling. That Mr. Ojwang Agina advocate appeared in court on the date of delivery of the ruling at 11 am and the ruling was read out to him hence allegations that he was not in attendance and was in hospital are not true. 4. That the proceedings of 25th September 2025 do not show the clerk of the applicant’s advocate addressing the court. That that happened before the ruling on 28th August 2025. That Mr. Ojwang never mentioned to court on 25th September 2025 that he had been admitted in hospital. That the instant application was filed after two months and one week which is an inordinate delay. That no reason has been given for the delay Analysis and determination 5. The court has carefully considered the application and response thereto. The only issue that arise for the court’s determination is whether the applicant has demonstrated good and suficient cause to justify extension of time. 6. Section 79G of the Civil procedure Act provide for time within which to file appeal as follows; “ Every appeal from a subordinate court to the High court shall be filed 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 satisfies the court that he had good and suficient cause for not filing the appeal in time.” 7. It is therefore clear that an appeal against a decision of the subordinate court to this court ought to be filed within 30 days of delivery of the decision sought to be appealed against. However, where there is a good and suficient cause for delay, the court has discretion to grant leave for a party to file appeal out of time. 8. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme court had the following to say on extension of time for filing an appeal; “ 1. 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. 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis. 4. Whether there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court. 5. Whether there will be any prejudice sufiered by the Respondents if the extension is granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1637/eng@2026-03-11 2

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6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 9. Therefore, to obtain leave to appeal out of time the applicant is obligated to explain the reason for delay to the satisfaction of the court, as the discretion to extend time ought to be exercised judiciously. In the instant case, the applicant alleged that his advocate was absent on the date of the ruling and had been admitted in hospital after being involved in a road accident, and only came to be aware of the ruling much later. 10. I have considered the proceedings availed by the respondent and the same shows that Mr. Agina appeared in court on 25th September 2025 at 11 am and the ruling was read out to him. Therefore, allegations that he was absent on that date and only became aware of the ruling much later are incorrect. That being the position, and as the applicant has predicated his application on falsehoods, I find no merit in the application dated 1st December 2025 which I dismiss. In view of the current state of counsel for the applicant, I make no order as to costs. 11. It is so ordered DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THIS 11TH DAY OF MARCH 2026 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM A. NYUKURI JUDGE In the presence of; Mr. Agina for the applicant Mr. Mshindi for the respondent Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1637/eng@2026-03-11 3

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