Kibiti v Kithira

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis. 4. Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court. 5. Whether there will be any prejudice suered by the respondents if the extension is granted. 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be consideration for extending time. 3. The judgment in this case was delivered on the 15th May, 2024. The application seeking extension of time to le the notice of appeal and the appeal is dated 27th August 2024. The applicant should have led his notice of appeal by 28th May, 2024. That means by the time the instant application was led, the delay involved was just over 60 days. The applicant needs to lay a basis to the satisfaction of the Court why the order sought should be granted by giving a reasonable explanation for the delay. 4. By way of explanation, the applicant deposed that he instructed his advocate on record in the superior court to le an appeal. He stated that due to nancial constraints he was only able to do part payment to counsel on the 22nd of May, 2024. He deposed that his advocate assured him that he would pursue the appeal however over time eorts to reach him to nd out how the appeal was proceeding became futile. He deposed that immediately after realizing that the appeal had not been led he instructed another counsel to handle the appeal as such there has been no inordinate delay. He also stated that no prejudice will be occasioned on the respondent. That the chances of the appeal succeeding are high. 5. The respondent has opposed the application, through her replying adavit dated 9th September, 2024. She raised a technical point that the applicant led his application during the Court vacation without seeking leave to do so. That issue is misplaced. The only time a party that les an application during court vacation will need court’s leave is not for purposes of ling the application but for purposes of having the application certied urgent for hearing during vacation. There is nothing to show that the applicant sought to be heard during the court’s vacation. 6. The respondent also contended that the only reason given for the delay as alleged by the applicant is that he paid partial fees to his then advocates on 22nd May, 2024 to process an appeal to this Court, that however, there is no evidence that the applicant followed up with his then advocates on the status of his appeal after 22nd May, 2024 until 27th August, 2024 when the present application was made. 7. The delay involved in this application, as I stated earlier is about 60 days. The applicant has explained the reason for the delay. Even though he paid his previous counsel in part on 22nd May, 2024 which was before the time to le the notice of appeal and the record of appeal had lapsed, the counsel seems to have prepared the notice of appeal dated 27th May, 2024, which is marked “SK1” in the replying adavit. The applicant has demonstrated the eorts and the follow- up that he made to ensure the appeal was led in time. He annexed the document for the part payment he made to his previous advocate to enable him start the process, which I nd sucient proof to show he had followed up on his appeal with diligence. I am satised that the explanation given by the applicant is reasonable explanation. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1871/eng@2024-12-05 2

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8. In addition, the applicant has demonstrated that the moment he discovered that his previous advocate was not taking steps to le his appeal, he instructed another counsel who led the instant application. 9. As to the prejudice either party stands to lose; the applicant stands to lose his undisputable right of appeal. As for the respondent, all she stands to lose is delay in having to wait for the appeal to be determined. Having balanced the two interests, I nd that the applicant will stand to lose more if the application is denied. 10. The result of this application is that the application is merited and is thus allowed in the following terms: 1. The application dated 27th August, 2024 be and is hereby allowed; 2. the applicant should le its notice of appeal within 21 days from the date hereof and be served within 14 days from the date of ling; 3. the applicant is granted leave to le the record of appeal within 14 days of the date of ling the notice of appeal and to serve the same within 7 days from the date of ling of the record of appeal; and 4. the costs of the application be met by the applicant. DATED AND DELIVERED AT NYERI THIS 5TH DAY OF DECEMBER, 2024. J. LESIIT ............... 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/2024/1871/eng@2024-12-05 3

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