Kenya Ports Authority v Munyao & 4 others

the notice of appeal on Friday 26th July 2019 but was late to le it but managed to le it the following Monday 29th July 2019 by which time the time for ling the notice of appeal had already lapsed. 3. Opposing the application, learned counsel for the appellant/respondent Mrs. Wetende relied on a replying adavit sworn by Wamuyu Ikegu, a Senior Legal Ocer of the appellant and her written submissions in urging that no valid grounds have been set out to warrant the orders sought; and that the applicants have not set out any matters of general public importance as a basis of the intended appeal to the Supreme Court. 4. I have considered the application and the submissions. It is noteworthy, for a start, that the appellant/ respondent moved the Court in this appeal by application dated 2nd August 2019 seeking extension of time to apply for certication of its intended appeal against the same judgment of this Court, which application was allowed by a ruling delivered on 5th November 2021. 5. That as it may, the principles guiding this Court in applications for extension of time are established. Waki, JA summarized those principles in the case of Fakir Mohamed vs. Joseph Mugambi & 2 others [2005] eKLR where he stated: “ The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the eect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi vs. Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.” 6. The Supreme Court of Kenya, more recently in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014[2014] eKLR pronounced that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suered by the respondents if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration. See also the recent ruling of the Supreme Court of Kenya in Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) [2022] KESC 3 (KLR) (Commercial and Tax) (10 February 2022) (Ruling). 7. With those principles in mind, the judgment of this Court, as already stated was delivered on 11th July 2019. Under Rule 36 of the Supreme Court Rules, the notice of appeal ought to have been led within 14 days from 11th July, 2019, that was by 25th July 2019. The applicants state that the notice of appeal was led on 29th July, 2019. Although in their application and in the supporting adavit the applicants have referred to a notice of appeal, it was however not exhibited. 8. The present application, though dated 26th July 2019 was lodged on 30th July 2019 and a plausible explanation has been oered that time was lost in obtaining a copy of the judgment and in obtaining instructions from the applicants. The delay involved is not, in the circumstances, inordinate. It is not evident what prejudice the appellant/ respondent will suer by enlargement of time in favour of https://new.kenyalaw.org/akn/ke/judgment/keca/2022/569/eng@2022-06-10 2

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the applicants. I am in the circumstances inclined to exercise the Court’s discretion in favour of the applicants. 9. Accordingly, I allow the application in terms of prayer 3 of the application. The applicants shall le and serve the notice of appeal within 14 days of delivery of this ruling. If, however, the applicants have already led and served the notice of appeal on 29th July 2019, the same is admitted out of time. 10. I make no orders as to costs. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JUNE 2022. S. GATEMBU KAIRU, FCIArb ............................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/569/eng@2022-06-10 3

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