Atanasio Mwika v 1. Land Adjudication Officer – Nyambene Director of Land Adjudication 2. Ichengi Thuranira

The court acknowledged that the affidavit in support failed to clearly state the reason for the twenty-day delay. It nonetheless held that delay must be assessed in the circumstances of the case: the applicant had filed a notice of appeal within time and served the first and second respondents within the prescribed period under rule 76(1), and the appeal had been struck out solely because the third respondent, a person affected, had been omitted from service. Against that background the short delay did not displace the discretion to extend time.

The court weighed the applicant's promptness in filing and serving the original notice of appeal on the first and second respondents in terms of rule 76(1) against the omission of the third respondent from service, which had caused Civil Appeal No. 106 of 1999 to be struck out. Finding the subsequent twenty-day delay not inordinate, the judge exercised the rule 4 discretion in the applicant's favour and fixed consequential timelines: seven days to file a fresh notice of appeal and fourteen days from that filing to lodge the record of appeal, with costs in the appeal.

The ruling records that the notice of appeal was served on the first and second respondents within the prescribed time in terms of rule 76(1), but that the third respondent — described as a person undoubtedly affected by the appeal — was excluded from service. The court states that it was for that reason that Civil Appeal No. 106 of 1999 was struck out. This recital supplies the context for the extension application and reflects the court's practice on service of notices of appeal, rather than the ratio of the present decision.