Ngaruthi v Bonasa

4. Learned counsel for the applicant led submissions and a list of authorities both dated 4th December 2025. Counsel submitted that the application is premised on rule 4 of the Rules, which grants the Court discretionary power to extend time. Counsel rehashed the grounds in support of the application and the averments in the adavit of the applicant. He contended further that the appeal has a high chance of success, referencing the grounds in the annexed draft memorandum of appeal. In support of his submissions counsel relied on Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, where the Court held that a plausible and satisfactory explanation for delay is key to unlocking the Court’s discretion. He also cited Fakir Mohammed vs. Joseph Mugambi & 2 Others [2005] eKLR and Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi Civil Appeal No. Nai 255 of 1977, where the court held that the factors the court may consider include: the length of the delay, the reason for the delay (which must be plausible and satisfactory), the chances of the appeal succeeding (arguable appeal) and the degree of prejudice to the respondent if the application is granted. He contended that the delay was satisfactorily explained, the appeal is arguable and the respondent will not be prejudiced if the application is granted. 5. I have considered the application, the adavit in support and the submissions. The issue for determination is whether to grant leave to appeal out of time. Rule 4 of the Rules governs the extension of time. The Rule allows this Court to exercise discretion to extend the time limited by the Rules for doing any act authorized or required by the Rules. In Salat vs. Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling), the Supreme Court had this to say on the issue of extension of time: “ … it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant. … we derive the following as the underlying principles that a Court should consider in exercising such discretion: 1. extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court; 2. a party who seeks 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. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court; 5. whether there will be any prejudice suered by the respondents, if 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 a consideration for extending time.” https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2245/eng@2025-12-19 2

page 2 of 3

This Court on the same subject stated in Towett vs. Kibaru & Another (Civil Application E191 of 2025) [2025] KECA 1650 (KLR) (9 October 2025): “ Rule 4 of the Court of Appeal Rules, 2022 empowers this Court to extend time for the doing of any act authorized or required by the Rules. The power is discretionary and should be exercised judicially upon good cause being shown. Some of the factors to bear in mind include the period of delay; the reason for the delay; the degree of prejudice the respondent stands to suer; justice should be administered without undue regard to procedural technicalities and that justice should not be delayed. (see Njeri Njoroge v Joseph Maina Gichuhi & another [2018] eKLR)”. 6. In the instant matter judgement was delivered on 5th June 2025 and the applicant lodged his notice of appeal on 10th of June 2025; on time. He applied for proceedings on the 7th of June 2025, and received by court on 10th June 2025; the certicate of delay was issued on 15th October 2025, and within a month this application was led. 7. The explanation made is satisfactory though the application ought to have been led much earlier. I grant the application. The appeal be led and served within the next 21 days of this ruling. 8. Costs of the application will abide by the outcome of the appeal. DATED AND DELIVERED AT NYERI THIS 19TH DAY OF DECEMBER, 2025. ALI-ARONI ………………………………… 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/2025/2245/eng@2025-12-19 3

page 3 of 3