keca-2022-01193

seek extension of time within which to le a Notice of Appeal against the ruling of Oundo J dated 23rd June 2020. 2. The motion is supported on the grounds on the face of the motion and an adavit sworn by the 1st applicant who deposed inter alia that they were desirous of lling an appeal against the impugned ruling and that they were yet to be supplied with certied copies of the proceedings and judgment as the same could not be supplied as covid 19 had been ravaging the whole country with lockdown disrupting court operations thus occasioning the delay in lling the Notice of Appeal. 3. The motion was opposed vide a replying adavit sworn by the 2nd respondent on 5th September 2022, who deposed inter alia that on 23rd June 2020, the applicants were granted a stay of execution pending appeal on condition that they deposit Kshs 1,500,000/= as security in Court which condition they never complied with and that despite the Court ordering the applicants to vacate the suit property, they refused to do so whereupon the Court issued eviction orders which eviction was eected on 9th August, 2021 by Wanderi Auctioneers. 4. He further deposed that the application beforehand was frivolous, vexatious and an abuse of the court process since there already exists a Notice of Appeal in this matter led by the rm of Waiganjo & Company advocates which the applicants were well aware of as it was an annexure in their application dated 23rd December 2019. 5. It was submitted for the applicants inter alia that they had given sucient reasons as to why they delayed in ling the appeal and that further no prejudice would be suered by the respondents if the instant application were to be allowed. 6. I have carefully considered the motion, the grounds thereof, the supporting adavit, the further adavit, the replying adavit, the applicants’ submissions and the law. 7. The principles upon which this Court exercises its discretion under Rule 4 are rmly settled. The Court has wide and unfettered discretion in deciding whether to extend time or decline the same. However, in exercising its discretion the Court should do so judiciously. See Mwangi v Kenya Airways Limited [2003] eKLR 486 where this Court stated thus: “ Over the years, the Court has set out guidelines on what a single Judge Should consider when dealing with an application for extension of time under Rule 4 of the Rules. For instance, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997 (unreported), the Court expressed itself thus; “It is now well settled that the decision whether or not to extend 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; rst 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 degree of prejudice to the respondent if the application is granted.” 8. In the instant case, and as regards the length of the delay, the impugned ruling was delivered on 23rd June 2020 whereas the instant motion is dated 6th April 2021. There has therefore been a delay of about 10 months which I consider to be inordinate. 9. Regarding reasons for the delay, the applicants appear to be blaming Covid 19 Pandemic which had disrupted court operations hence the delay in ling the Notice of Appeal. Save for a receipt evidencing https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1193/eng@2022-10-12 2

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payment of certied copies of judgment and proceedings, there is no other evidence showing the eorts that the applicants made to follow up on the proceedings. 10. Even if it were to be believed that the indeed covid 19 was to blame for the delay in lling the Notice of Appeal, the applicants have still not explained why they led the instant application late. Moreover, the 2nd respondent vide his replying adavit sworn 5th September 2022 has deposed inter alia that there is already a Notice of Appeal in place led by the applicants’ former advocates, a fact which is well within the applicants’ knowledge and which they have not controverted. A situation where there are two Notices of Appeal in respect of the same subject matter is not tenable. 11. In view of the above, I am not satised that the delay herein has been explained to the satisfaction of this Court and I nd the reasons given for the delay not to be plausible. 12. With regard to the possibility of the appeal succeeding, I cannot make a denitive nding on this issue sitting a single judge and I will make no further comment regarding the same. 13. As regards prejudice, the applicants have already been evicted from the suit land and I am of the considered view that they will not suer any prejudice if the instant application is declined. 14. Given the circumstances, I nd that the applicants have not demonstrated and satised the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time to le the Notice of Appeal. 15. Whereas this Court empathizes with the applicants who are unrepresented and this would probably explain why they subsequently led another motion dated 1st August 2022, seeking inter alia similar orders through one Elizabeth Ngugi and more so the 1st applicant herein who avers that she is elderly and poor and has been living on the suit land for over 50 years, this Courts hands are tied and the applicants’ application can only suer one fate, dismissal. 16. Accordingly, the applicants motion dated 6th April 2021, is hereby dismissed with no order as to costs. Orders accordingly. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF OCTOBER, 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/2022/1193/eng@2022-10-12 3

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