Mbirithi Jeremiah Mwingirwa v M’mailutha Nkuraru & 2 others

4. The application is opposed through the replying affidavit sworn by the 1st respondent (M’ailutha Nkuraru) on 7th April 2025. According to the respondent, the application has no merit and it is only aimed at delaying justice. The respondent describes the applicant as a perennial and full-time applicant for extension of time both before this Court and before the trial court. He deposes that the applicant’s appeal before the ELC was dismissed following his failure to comply with the directions given by the court on several occasions. 5. Both parties have filed submissions which I have considered along with the application and the applicable law. To start with, I agree with the respondent that this is a bad application. The intended appeal is against a ruling by Judge Nzili whereby he dismissed an application for extension of time to file the record of appeal before that court out of time. 6. An appeal against such a ruling does not lie as a matter of right, which means that the applicant herein ought to have sought leave to appeal to this Court which he has clearly not done. 7. Even assuming, for the sake of argument, that the applicant’s intended appeal is valid, his application is not clear at all. If the applicant says that he was late in compiling the record of appeal which he intended to file before this Court, then there is a procedure which is clearly set out in the Court of Appeal Rules which he needed to have complied with before he can move this Court for extension of time to file a record out of time. This procedure is set out under rule 84 of the Rules of this Court which will not be necessary for me to replicate here. Learned counsel for the applicant seems to be oblivious of the said rules. 8. There is not before this Court a letter from the applicant’s counsel requesting for the proceedings before the trial court which letter was filed within 30 days and copied and served on the respondent within those 30 days. The applicant does not even claim to have written such a letter. There is no certificate of delay in this case as the document described as a certificate of delay is a note from the Deputy Registrar of the ELC saying that there was no delay because the proceedings were requested for and they were supplied within two days of the request. No certificate was therefore issued. 9. With respect to counsel for the applicant, this application has been drafted and brought to court in a very flippant manner and in complete ignorance of the relevant Rules of this Court. There is no basis whatsoever, under the Court of Appeal Rules for me to grant the orders sought. Orders before this Court must be given in accordance with the relevant law and can never been given in vacuo. 10. The application doesn't meet the barest standard expected of an application for extension of time to file a record of appeal out of time. This application is totally devoid of merit and the same is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT NYERI THIS 1ST DAY OF AUGUST 2025. W. KARANJA 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/2025/1432/eng@2025-08-01 2

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