Meditest Diagnostic Services Limited v Amit Kumar Sharma

respondent. Page 2 of 6

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3. The applicant was aggrieved by the outcome, and instructed Counsel to file an appeal. The said advocates are said to have accessed the judgment on 29th January 2026 but ended up computing the 14 days statutory period erroneously arriving at 13th February 2026 as the last day to file the said Notice of Appeal; and that on that understanding prepared and filed the notice dated 13th February 2026 and served the same on the respondent on 18 th February 2026. The applicant explains that the error in computation was an honest mistake of counsel and that the same was neither negligent, deliberate nor dilatory; and the intended appeal is described as predisposed to a great chance of success and that there is no prejudice to be suffered should the application be allowed. 4. At the time of hearing this application, there was no replying affidavit nor submissions by the respondent. The record shows only the written submissions filed on behalf of the applicant 5. In determining whether the applicant met the prerequisites for granting relief sought, rule 4 of the Court of Appeal Rules, 2022, gives the court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular prescribed action. Although under the said rule, this Court has unfettered discretion on whether to extend time or not, that discretion must be exercised judiciously as was set out in Leo Sila Mutiso vs Rose Page 3 of 6

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Wangari Mwangi, Civil Application No. Nai 255/97 (unreported), which pointed out that however, must be exercised judiciously Page 4 of 6 this discretion,

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and upon reason, rather than arbitrarily, capriciously on a whim or sentiment. [See Julius Kamau Kithaka vs Waruguru Kithaki & 2 Others [2013 eKLR] 6. In Imperial Bank (IR) & Anor vs Alnashir Popat and Others [2018] eKLR M’Inoti, J. had this to say concerning Rule 4: “A look at legislative history of Rule 4 will show that before 1985 the rule required that an applicant to show ‘sufficient reason’ why discretion should be exercised in his favor. After an amendment in 1985 that ‘sufficient stricture’ was removed, and the court was henceforth allowed to extend time on such terms that it deemed just. As subsequent decisions show, the amendment did not mean that the court will extend time merely on the asking. The party seeking extension of time must establish basis upon which court should exercise its discretion in its favor.” 7. Discretion also depends on circumstances of each case as was discussed in Mongira & Another vs Makori & Another [2005] eKLR. The Supreme Court has settled principles to guide in exercise of discretion to extend time. The case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] e KLR sets down these principles as follows: “i. Extension of time is not a right to 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 extension of time has the burden of laying basis to the Page 5 of 6

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satisfaction of the court. Page 6 of 6

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iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-bycase basis. iv. Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court. v. Whether there will be any prejudice suffered by the Respondent if extension is granted. vi. Whether the application has been brought without undue delay. vii. Whether in certain cases public interest should be a consideration for extension of time.” One other consideration included by the learned Judge in the case of Julius Kamau Kitheka (supra) is whether prima facie the intended Appeal/Appeal has chances of success or is a mere frivolity. 8. The applicant has in the supporting affidavit, sets out the reason for the delay in serving the notice of appeal, pegging it on the fact that the advocate on record miscomputed the time within which to file the notice of appeal. 9. The applicant submits that the delay was not inordinate as it was a delay of merely two days as the judgment that was delivered on 28th January 2026 was electronically relayed rather late at 20.55.31 EAT (as per electronic time stamp), which was well after close of business hours and that the applicant’s advocates on record were only able to access the said judgment the following day on 29 th January 2026. In Page 7 of 6

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those circumstances, they computed the time from 29th January 2026 hence the delay; that the respondent would suffer no prejudice; and that it would be in the interest of justice for the orders sought to be granted so that the appeal be heard on merit. The applicant relies on the decision in Nicholas Salat v IEBC & 8 Others [2014] e KLR & Mwangi v Wambugu [1984] KLR 453 10. On the averments as to the dates and time of transmission of copy of judgment to the counsel for the applicant, there being no other opposing account of the happening, it is to be considered uncontested and plausible. 11. The other issue for consideration is whether there has been inordinate delay. Given the date of judgment, notice of appeal ought to have been filed and served by 11 th February 2026 but was filed on 13th February 2026. In urging that the delay is not inordinate, the applicant argues that in any event, from the explanations furnished, the mistake/lapse, if at all, was on the part of the applicant’s advocates which should not lead in this instance to dismissal of applications for extension of time. 12. Certainly, the period of 2 days would not be described as inordinately long. It is this court’s view that the explanation given for the delay is plausible, reasonable and satisfactory. 13. On the issue as to whether or not the Intended Appeal has chances of success, it is not the role of a single judge to determine the merits or otherwise of the Appeal. This Court Page 8 of 6

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has held in the case of Athuman Nasura Juma v Afwa Mohammed Ramadhan, CA 227/15: “…this court has to be careful to ensure that the intended Appeal has merit or not is not an issue to be determined with finality by a single Judge”. I must bear this in mind whilst determining the present application, the less said the better. 14. From the foregoing, I find that the applicant has satisfied the requirements to warrant granting of the orders sought. The application has merit and is allowed. The applicant is to file and serve the Notice of Appeal dated 13th February 2026 within fourteen (14) days from the date of this ruling. 15. Costs of the application shall be borne by the applicant Dated and delivered at Nairobi this 25th day of September, 2026. PAUL LILAN ……………….………….. JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 9 of 6

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