Taj Mall Limited v Taj Millenium Management Limited

that the respondent faces no risk of suering any irreversible risk if the order it seeks is granted since monetary compensation can cure the situation. 4. The applicant avers further that due to delay in obtaining the proceedings and judgment, its lawyers were issued with a certicate of delay dated 28th September 2023, and the record of appeal was lodged on 7th February 2024. The applicant concedes that the record of appeal was not lodged within the statutory period of 60 days. 5. The applicant further avers that the subject matter of the proceedings is weighty and sensitive and as such, it should be granted an opportunity to exhaust the appeal process. It contends that its appeal is arguable and has merit, with a likelihood of success, and is therefore worth entertained by this Court. It contends that unless the orders sought are granted, the appeal will be rendered nugatory. 6. The respondent opposes the application and has led a replying adavit sworn by Samwel Ouko Mbori on 16th September 2024. The respondent avers that this application is a mere afterthought and that the applicant was only jolted into action after being served with an application dated 6th August 2024 seeking to strike out the record of appeal for being lodged out of time, and a letter dated 22nd August 2024 demanding compliance with the order dated 30th July, 2024 ordering the applicant to transfer the reversionary interest in the property. 7. The respondent further avers that from the outset, the applicant has blatantly disregarded statutory timelines by failing to serve the notice of appeal within the statutory timeline, which lapsed on 19th November, 2021. The respondent avers that it led a notice of address for service under protest; that the applicant’s advocates did not serve the respondent with a letter bespeaking typed proceedings; that the 60 days for ling of a record of appeal begun to run when the applicant’s advocates collected the typed proceedings on 28th July 2023, four days after the proceedings were stated to have been ready under the certicate of delay. 8. The respondent avers that the 60 days for ling the record of appeal, calculating them from the day the proceedings were collected on 28th July 2023, lapsed on 28th September 2023. It contends that the appellant’s memorandum and record of appeal, both dated 8th February 2024, were led on 11th March 2024, well beyond the statutory timeline. Further, that ve months or more lapsed from the time the applicant collected proceedings to when the memorandum and record of appeal were led, and no explanation has been oered for the delay. 9. The respondent further avers that the applicant’s appeal is incompetent and null and as a result, it will not be rendered nugatory, nor will the applicant be prejudiced if the application is denied. The respondent therefore prays that the application be dismissed with costs 10. I have read and considered the pleadings of the parties hereto and their written submissions, dated 25th September 2024 and 8th November 2024 respectively. I note that the submissions led by the applicant relate to the substantive appeal rather than the application before me. 11. The sole issue for my determination is whether I should exercise discretion, vested in the Court by rule 4 of this Court’s Rules 2022, and grant the applicant extension of time as prayed. The factors to be considered in determining whether to exercise discretion in favour of a party are well settled. The Court is required to consider, among other factors, the period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, and the degree of prejudice to the respondent if the application is granted-see Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Fakir Mohammed v Joseph Mugambi & 2 Other [2005] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1934/eng@2024-12-20 2

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12. In this matter, the applicant led a notice of appeal within time, on 12th November 2021. It should have served the notice of appeal on the respondent by 19th November 2021. The applicant applied for the typed proceedings, which it received on 28th July, 2023. Under the Rules of this Court, it should have led its memorandum and record of appeal sixty days later, by 28th September 2023. It did not, however, do so, ling its memorandum and record of appeal, according to the respondent, the applicant being silent in this regard, on 11th March, 2024. The applicant attributes the delay in ling a record of appeal to failure to obtain certied copies of the proceedings, blaming the delay on the judiciary. It explains the failure to serve the notice of appeal on the respondent in time on inadvertence on the part of its advocates. 13. The certicate of delay issued to the applicant is dated 20th September, 2023, and the proceedings were collected on 28th July 2023. The applicant led its record of appeal in March 2024, seven (7) months after it received the proceedings and certicate of delay. It has not explained the delay of more than ve months from the end of the 60-day statutory period within which it should have led its record of appeal. 14. The applicant has not proered any reason whatsoever for the delay, and in the absence of any reasons, let alone plausible and satisfactory reasons for the delay in excess of ve months, which I nd to be inordinate, I am unable to exercise discretion in favour of the applicant. 15. Accordingly, I nd the application dated 22nd August 2024 to be devoid of merit. It is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. MUMBI NGUGI …………………………… 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/2024/1934/eng@2024-12-20 3

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