Joseph Kibe Mungai (as Guardian ad litem of Ramesh Liladh Shah) v John Njau Njuguna Ammon Muhoho Johana (as the legal representative of the Estate of the late Reuben Kangara Kirika) & 15 others

The single Judge applied the settled four-factor test: length of delay, reason for delay, arguability of the appeal, and prejudice. Counsel miscalculated the start date, miscalculated the expiry date, filed outside the 60-day period, and then delayed a further 28 days after the appeal was struck out without explanation. The Judge distinguished the case from Njuguna v Magichu (a land matter) noting this was a commercial partnership dispute, and found the errors showed a high degree of lack of attention to the Rules.

The proviso excludes from computation only time certified as required for preparation and delivery of copies, and only where the bespeaking letter was made within 30 days and in writing with a copy sent to the respondent. The 27th May 2002 letter made no reference to the alleged 18th January 2002 letter and was not copied to the respondent; the evidence of service was unconvincing. The Certificate of Delay could reduce the delay to about 7 days, but only if the proviso could be relied on, which it could not.

Counsel for the applicant argued it was significant that the respondent had not moved to strike out the appeal and had received no costs. The Judge held this carried no weight in deciding whether to grant the extension, since the discretion turned on the delay, its explanation, and the other settled factors.