Kortot & another v Gisore

(d) the intended appeal raises serious and arguable issues of law and fact for consideration by the Court, and (e) the respondent will not suer any prejudice if the application is allowed. 3. The respondent has not led a reply to application or submissions despite having been served. 4. I have considered the application, the adavit in support and the submissions. Rule 4 provides that: “ The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 5. The Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR summed up the applicable considerations as follows: i. Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to-case basis; iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; v. Whether there will be any prejudice suered by the respondents if the extension is granted; vi. Whether the application has been brought without undue delay; and, vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 6. Courts operate on the principle that if there is no reasonable explanation, the indulgence will generally not be granted, even if there are prospects of success of the appeal. An applicant must provide a "good cause" or "sucient cause," which means a full and reasonable explanation that covers the entire period of the delay. A vague or incomplete explanation will not trigger the discretion to condone. I must emphasize that condonation is not a right, and that "hard-earned judgments" should not be lightly disturbed. A party must show a valid reason for the laxity. The investigation into the reasonableness of the delay is a factual enquiry. However, once a "plausible explanation", is found to exist, it enables courts to look at other factors, like prospects of success so as to exercise its discretion. 7. To be deemed "plausible" and trigger the Court's discretion, the applicant generally must show: (a) that the delay was not due to negligent inaction. The delay must be accounted for by factors beyond the applicant's control (e.g., waiting for transcripts, severe illness, or genuine attorney negligence, though the latter is viewed critically). (b) it must cover the entire period. Explaining only part of the period of delay is "far from satisfactory" and most likely, it will not justify the extension. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1684/eng@2026-09-16 2

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(c) the reason must not be "ctitious" or "calculated" delay the case. The Court requires honesty in the explanation. 8. The guiding threshold is clearly set out in rule for which is “on such terms as may be just” which means the standard is the "interests of justice," which requires balancing the explanation for the delay, the prospects of success, the importance of the case, and prejudice to the parties. A plausible explanation, however, is the "key that unlocks the door" to this balancing exercise. If the explanation for the delay is not plausible (i.e., it is weak, contradictory or non-existent), the Court usually will not exercise its discretion to extend time, even if the appeal has merit. A good explanation for a long delay is often needed to satisfy the "good cause" requirement. 9. I have looked at the reasons provided by the applicant highlighted earlier. There is a delay of 4 years. The applicant claims he lost contact with his lawyer. Courts routinely reject standard assertions of "losing contact" with a legal representative based on two core legal principles: (a) The litigant's duty of diligence. Courts place a positive obligation on the litigant to actively follow up on their case. A litigant cannot simply hand over a matter to an attorney and remain passive. There is a limit beyond which a litigant cannot escape the consequences of their attorney’s lack of diligence. (See Regal vs. African Superslate (Pty) Ltd 1962 (3) SA 18 (A)). If a litigant claims they "lost contact," the Court will ask: What steps did the litigant take to re-establish contact? If the applicant sat back and let weeks or months pass without visiting the oce, calling or writing letters, the court will nd a lack of interest, and condonation will be denied. Simply stating "I lost contact with my lawyer" is too vague. The applicant must explicitly set out in a supporting adavit: (a) exactly when and how contact was lost. Detailed, chronological proof of attempts made to nd the lawyer (e.g., call logs, emails, physical visits). Why alternative steps, such as approaching the Law Society of Kenya or appointing a new attorney were not taken immediately. In this case there is a delay of 4 years. No details of when he lost the contact or when the alleged calls or physical visits took place. No explanation as to why the applicant did not appoint a new lawyer immediately he “lost contact.” The reason oered in my view is imsy. It does not suce. The application dated 8th July 2026 is dismissed. Since the respondent did not le any papers, I make no orders as to costs. DATED AND DELIVERED AT NAKURU THIS 16TH DAY OF SEPTEMBER, 2026. J. MATIVO ........................... 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/2026/1684/eng@2026-09-16 3

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