Manyara v Teachers Service Commission

3. He further deposed that as a result, he had led a complaint against the aforesaid advocate both at the Law Society of Kenya and the Advocates Complaints Commission. 4. There was no response on part of the respondent. 5. It was submitted for the applicant that by dint of Rule 4 of this Court’s Rules, the Court has wide discretionary powers in its consideration of applications for extension of time and that further the delay herein was not attributable to the applicant but rather on his counsel who was on record at the time. 6. I have carefully considered the motion, the grounds thereof, the supporting adavit, the applicant’s submissions and the law. 7. The applicant’s motion is brought inter alia, under Rule 4 of this Court’s Rules. The said Rule provides: "4 Extension of time The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 8. The principles upon which this Court exercises its discretion under Rule 4 are rmly settled. The Court has wide unfettered discretion whether to extend time or not. However, in exercising its discretion the Court should do so judiciously. In Fakir Mohamed vs. Joseph Mugambi & 2 Others C.A. No. NAI. 332 of 2004, this Court stated as follows regarding discretion under the Rule and the factors that ought to guide its exercise: “The exercise of this Court’s discretion under rule 4 has followed a well-beaten path since the stricture of “sucient reason” was removed by amendment in 1985. As it 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 the 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 …” 9. In the instant case, Rule 4 of this Court which guides the Court in applications of this nature has not even been cited. Be that as it may, Article 159 (2) (d) of the Constitution of Kenya 2010, requires the Court to administer justice without undue regard to procedural technicalities. In any event the applicant has proceeded to quote Rule 4 (supra) in his submissions, I will therefore proceed to determine the matter on its merits or otherwise. 10. The impugned judgment that the applicant seeks to appeal against was delivered on 25th January 2017. There has therefore been a delay of more than 5 years in instituting the appeal. No doubt a period of more than 5 years is inordinate/unreasonable. As regards the reasons for the delay, the applicant has contended that the reasons for the delay in ling the appeal is as a result of his advocate’s failure in ling the same within the lawfully stipulated time despite his rm instructions to le the appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/878/eng@2022-06-10 2

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11. From the circumstances of this case, I am of the considered opinion that the reason put forth for the delay is plausible and the same has been explained to the satisfaction of this Court. Indeed, the applicant had led complaints against his then advocate to both the Law Society of Kenya and the Advocates Complaints Commission. 12. With regard to the possibility of the appeal succeeding, no draft memorandum of appeal has been annexed to the motion to enable this Court make a nding on this issue. More so, I am alive to the fact that I cannot make a nding on this issue as a single Judge lest I embarrass the bench that will eventually be seized of the intended appeal. 13. As regards prejudice, I am satised that the applicant who is in person will be greatly prejudiced as his right of appeal will have been completely shut out. 14. Taking into totality all the circumstances in this case, I nd that the applicant has demonstrated and satised the existence of the principles for consideration in the exercise of my unfettered discretion under Rule 4 of this Court’s Rules to extend time to le an appeal out of time. 15. Accordingly, the applicant’s motion is merited and the same is hereby allowed in terms of prayer 2. The applicant will le and serve the intended appeal within 30 days from the date of this ruling failure to which these orders shall stand vacated. 16. The costs of the motion shall abide the outcome of the intended appeal. 17. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JUNE, 2022. F. SICHALE ...................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/878/eng@2022-06-10 3

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