Mwingi Mwalimu Savings & Credit Co-operative Society Limited v David Kasina

applicant believes that it has an arguable appeal and has annexed a draft memorandum of appeal to its affidavit. 4. The respondent has opposed the application and filed a replying affidavit. He states, inter alia, that the applicant has not met the conditions and threshold for exercise of this court’s discretion for extension of time; that the intended appeal has no chances of success; that the certified copies of the proceedings were ready for collection on 30th July 2024 which is the relevant period for computation of time and, therefore, the 60 days period expired on or about 30th September 2024, yet the application for extension of time was filed on 30th December 2024, which he says is 156 days out of time. 5. The respondent further states that the applicant did not make any follow-up to obtain the proceedings between 30th July 2024 and 11th October 2024; that there has been inordinate delay, and if the orders sought are granted, he will be very prejudiced. He therefore urges that this application be dismissed. 6. This application came up for hearing on 28th October 2025 and in accordance with the directions given by the court, the application was canvased by way of written submissions only. I have considered the submissions that are on record. In an application for extension of time, the court exercises unfettered discretion, but that discretion has to be exercised judiciously. Among the factors that the court takes into consideration are: the lengthy of the delay, the reasons for the delay, possibly the chances of success of the intended appeal, and the degree of prejudice that the respondent may suffer if the orders sought are granted. See Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 331. 7. The impugned ruling was delivered on 20th February 2024 and the notice of appeal was filed on 27th February 2024. On the same day, the applicant’s advocate applied for typed proceedings, but the same were not availed until 11th October 2024. There is a certificate of delay to that effect. 8. Although the certificate of delay shows that the proceedings were ready for collection on 30th July 2024, there is no evidence that the applicant’s advocate had been so notified. I will therefore compute time from 24th October 2024 when the certificate of delay was supplied. Considering that the application was filed on 3rd December 2024, the period of delay was about 51 days or thereabout, which in my view is not inordinate. The reasons for the delay have been well explained. 9. Having looked at the draft memorandum of appeal, I do not think that the intended appeal is frivolous, and regarding the prejudice that the respondent may suffer if this application is allowed, the court must weigh the same against the applicant’s desire to exercise its constitutional right of appeal. In any event, the impugned judgment was delivered only last year, although the matter has been in court since 2016. The respondent can be compensated by an award of costs. 10. All in all, I am satisfied that the applicant has advanced reasonable grounds to enable this court exercise its discretion in its favour. Consequently, I allow this application and direct that the memorandum and record of appeal be filed and served within 14 days from the date of this ruling. The applicant shall bear the cost of the application. DATED AND DELIVERED AT NAIROBI THIS 21ST DAY OF NOVEMBER, 2025. D. K. MUSINGA, (PRESIDENT) ………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1961/eng@2025-11-21 2

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1961/eng@2025-11-21 3

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