Satya Bhama Gandhi v UBA Kenya Bank Limited

4. That, subsequent thereafter, she made frantic eorts to abide by the said Court orders by writing to the Deputy Registrar of the Court on March 25, 2021 requesting for certied copies of the judgment and proceedings for purposes of ling an appeal but the same elicited no response. 5. She further deposed that on February 9, 2022, she again wrote to the Deputy Registrar following up on her request for certied copies of the proceedings and it was only on April 7, 2022, that she received a notication from the Court that the same were ready for collection. She thus contended that the delay in ling the appeal was due to factors beyond her control. 6. There was no response on part of the respondent. 7. The applicant in her submissions basically reiterated the contents of the supporting adavit and submitted inter alia that the reasons she had given for the delay demonstrate that there was no negligence, inaction and/or want of bonafides on her part to necessitate the delay in ling the appeal as directed by the Court but due to circumstances beyond her control. 8. I have carefully considered the motion, the grounds thereof, the supporting adavit, the applicant’s submissions, the cited authorities and the law. 9. 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 Fakir Mohamed v. Joseph Mugambi & 2 others C.A. No. Nai. 332 of 2004 where the Court laid out some of the considerations to be taken into account by the Court in deciding applications of these nature as follows; the length of the delay, the reasons for the delay, the possibility of the appeal succeeding and prejudice to be occasioned to the parties. 11. In the instant case, and as regards the length of the delay, the impugned judgment was delivered on February 3, 2020, whereupon the applicant led a Notice of Appeal dated February 17, 2020. Subsequent thereafter, this Court Karanja, Okwengu and Musinga JJ. A, vide a ruling dated 19th March 2021, directed the applicant to le and serve the appeal within 30 days. 12. The record herein however clearly shows that that the proceedings were not ready until April 7, 2022 and there is a Certicate of Delay towards this respect. On the other hand, the instant application is dated April 20, 2022. There has been a delay 13 days from the date when the proceedings were ready i.e. April 7, 2022 to April 20, 2022 when the instant application was led, which delay I do not consider to be inordinate/unreasonable. 13. Regarding reasons for the delay, I have looked at the Certicate of Delay, the various correspondences by the applicant to the Deputy Registrar requesting for proceedings and copies of medical notes and letters from the applicant’s doctor and I am satised that the delay herein has been explained to the satisfaction of this Court and I nd the reasons given for the delay to be plausible. With regard to the possibility of the appeal succeeding, I have looked at the annexed draft Memorandum of Appeal and I am satised that the applicant has an arguable appeal worthy of consideration by the Court. Of course I am alive to the fact that I cannot say more regarding this issue lest I embarrass the bench that will be eventually seized of the appeal. 14. As regards prejudice, the respondent has already commenced execution proceedings against the applicant by inter alia issuing Notices to Show Cause as to why the applicant should not be committed to civil jail and I am satised that it has been demonstrated to the satisfaction of this Court that the applicant will suer great prejudice if the instant application is not allowed. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1215/eng@2022-11-04 2

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15. Given the circumstances, I nd that the applicant has 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 an appeal out of time. 16. Accordingly, the applicant’s motion dated April 20, 2022 is meritorious and the same is hereby allowed in terms of prayer 2. 17. The applicant is hereby granted leave to le her appeal out of time against the judgment of Majanja J dated February 3, 2020, within 30 days from the date of this ruling failure to which these orders shall stand vacated. 18. The costs of this motion shall abide the outcome of the intended appeal. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF NOVEMBER, 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/2022/1215/eng@2022-11-04 3

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