Kimani Kairu v Mugo Kairu, Mavoloni Company Limited & The Machakos Land Registrar

of the Hon. Mr. Khapoya S. Benson Senior Principal Magistrate, delivered on 19 June, 2024 at Kithimani. b) THAT the court be pleased to preserve the suit property pending the determination of this application and the appeal. c) THAT the notice of appeal and memorandum of appeal annexed hereto be deemed as duly filed and served. d) THAT the costs of this application be in the cause. 2. The motion is supported by several grounds presented on its face and by the supporting affidavit of the applicant sworn on 8 November 2024. He makes several statements. He concisely asserts that the ruling was first scheduled for 17 April 2024 but was not delivered, and that the court provided no update. Despite several attempts to contact the court, the applicant's advocate was not notified of the new date. The court eventually issued the ruling on 19 June 2024 without the applicant or his advocate being present or informed. The advocate only discovered the dismissal of the suit in the impugned ruling after perusing the court file on 22 June 2024. The application was filed immediately after this discovery, though it was initially filed in the wrong court as HCCC MISC/E238/2024. LC MISC. E045/24 RG 2

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3. The 1st respondent, through the replying affidavit of Nancy Mireri sworn on 16 September 2025, strenuously challenges the application. She advances several averments. In brief, the application contains falsehoods and misleading information. The applicant was aware of this ruling and filed an appeal in the Machakos High Court (case E238 of 2024) on 30 July 2024, but later withdrew it on 31 January 2025. The application fails to provide valid reasons for the delay in filing the appeal within the required timelines. 4. The motion is canvassed by written submissions from the applicant and the 3rd respondent. Ms. Wachenje & Mariga Advocates LLP for the applicant filed its submissions dated 15 April 2026, whereas Ms. Christine Momanyi, State Counsel for the 3rd respondent, filed its submission dated 15 May 2026. Accordingly, the court has thoroughly examined the motion, its grounds, affidavits, annexures, and rival submissions, and it suffices to say that the issues for determination are (a) whether an extension of time to appeal should be granted to the applicant and (b) what orders should this court issue. 5. In addressing the distilled issues, it is imperative for this court to emphasise the pertinent legal provisions concerning the extension of time to lodge an appeal. Concerning this matter, as indicated on the face of the motion, Section 79G of the Civil Procedure Act stipulates that any party involved in LC MISC. E045/24 RG 3

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proceedings before the lower court who is dissatisfied with its decision may, within 30 days of the decision, lodge an appeal to the superior court authorised to hear such appeals. 6. Nonetheless, in cases involving delays, parties may, as the applicant has done, make an application to the court under Section 95 of the Civil Procedure Act, requesting the court to exercise its sound discretion based on valid and sufficient grounds. The court may, at its discretion, subsequently extend the prescribed period, even if the initial period has expired. Section 79G of the Civil Procedure Act states; “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 sufficient cause for not filing the appeal in time.” While Section 95 of the Civil Procedure Act provides as follows: LC MISC. E045/24 RG 4

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“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by discretion, this Act, the court may, from time to time, enlarge in its such period, even though the period originally fixed or granted may have expired.” 7. In regard to the prevailing jurisprudence, the decision of the apex court, Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, espoused the guiding non-exhaustive principles that guide courts in entertaining applications of this nature. In this decision, the apex court summarised the nonexhaustive principles as follows: “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; LC MISC. E045/24 RG 5

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4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5. Whether there will be any prejudice suffered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether petitions, in certain public cases, interest like should election be a consideration for extending time.” 8. Further, the locus classicus case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), which is cited with approval in Nicholas Kiptoo (Supra), laid down the parameters as follows: “It is now well settled that 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: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the LC MISC. E045/24 RG 6

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degree of prejudice to the respondent if the application is granted.” 9. In considering the motion, this court must bear in mind that, although it has unfettered discretion, it must exercise that discretion judiciously, grounded in reason, material, and evidence placed before it. Furthermore, the circumstances of each case are unique, as even a single day can amount to a delay, and each case must be considered on its own set of conditions. 10. Respecting the first point for consideration of delay, it is undeniable that the motion is filed with undue delay as the impugned ruling was rendered on 19 June 2024 and the motion was filed on 8 November 2024; a period of close to 5 months. 11. Regarding the second point, namely a reasonable and satisfactory explanation, the applicant has advanced several reasons and presented several annexures for the court's consideration. These documents reveal that the ruling was initially scheduled to be delivered on 17 April 2024, but for reasons unknown, it was not rendered on that date. Thereafter, the applicant sought clarification from the court administrator regarding the next scheduled date, and it remains uncertain whether this was forthcoming. Eventually, the impugned ruling was rendered on 19 June 2024 in the absence of the applicant or his counsel. LC MISC. E045/24 RG 7

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12. The ruling demonstrates that the applicant was to be informed of the outcome by email. In the court's considered view, this may have occurred, as the applicant informs this court that he perused the court file on 22 June 2026, 3 days after the ruling, but the letter requesting for perusal has not been tendered. Later, on 22 July 2024, he sought a copy of the ruling and the proceedings. Thereafter, he lodged an appeal in the Machakos High Court on an undisclosed date, which he later withdrew. He also states that his counsel delayed in filing the appeal despite his instructions. 13. To this court, the crucial period from the alleged perusal of the file on 22 June 2024 to the lapse of the 30 days from the date the ruling was rendered, around 19 July 2022, has not been satisfactorily explained. It appears that, after such lapse, the applicant sought copies of the ruling and proceedings before erroneously filing an appeal in the High Court. Further, guided by Leo Sila Mutiso (Supra) and having considered the draft memorandum of appeal and the ruling deciding the applicant's locus standi to sue over a property ostensibly belonging to his father, Kanyua Kairu (deceased), this court is not satisfied that the applicant has an arguable appeal. 14. It is for the above reasons that this court finds that the notice of motion dated 30 October 2024 is found not to be LC MISC. E045/24 RG 8

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merited. It is dismissed, with each party bearing their respective costs. The file is effectively marked as closed. It is so ordered. Delivered and Dated at Machakos this 6th day of October, 2026. HON. A. Y. KOROSS JUDGE 06.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Mr. Mariga for the applicant. Miss Mumo for Miss Momanyi for 3rd respondent. LC MISC. E045/24 RG 9

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