Patrick Muturi Ihungu & another v Aricaranda Wathithia Gatei

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dismissed the motion and condemned the applicant to pay the costs, giving rise to this Reference. 2. The essential background to this Reference is this. The respondent filed ELC Case No. 798 of 2013 on 15th November, 2013 and obtained judgment in her favour on 28th June 2019, following a full hearing. The applicants filed a Notice of Appeal against that judgment on 1 st July, 2019. However, on 27th August 2019, they withdrew the Notice of Appeal and thereafter filed an application for review by a Notice of Motion dated 13th November, 2019. It is the dismissal of that application for review on 23 rd July, 2021that the applicants now seek to challenge out of time. 3. The arguments before the learned single Judge, and which the applicants reiterated in their submissions in rejoinder dated 27th April 2022, were that they had lodged a Notice of Appeal against the ruling of 23 rd July, 2021 on 26th July, 2021 in time. That they promptly requested for certified copies of the proceedings, and the bulk of the intervening period, amounting to 278 days, was covered by a certificate of delay issued on 28th April 2022. That it is the remaining period of less than two months which was attributable to inadvertence, and which ought to be excused. 4. The applicants further argued that the intended appeal is arguable, one of the proposed grounds being that the respondent had no letters of administration when she filed the suit in respect of the estate of the late James Kariithi Muturi. They maintained that the respondent, who is already in occupation and enjoying the produce of the land, would suffer Page 3 of

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no prejudice that could not be compensated by costs if the application is allowed. 5. The firm of M/s Ngigi Gichoya & Company Advocates, filed written submissions dated 23rd April 2026, on behalf of the respondent opposing the motion. It was submitted that: the applicants withdrew their earlier Notice of Appeal against the main judgment; the delay from 23 rd July, 2021 to the filing of the motion was approximately eleven months; a Notice of Appeal did not require typed proceedings; and that the intended appeal lacked merit. It was emphasized that the respondent had been kept out of the fruits of her judgment for several years and any further delay would continue that prejudice. 6. The learned Judge directed himself on the principles in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi (Civil Application No. Nai. 255 of 1997) and the later restatement of the principles by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR. He found the overall delay inordinate and rejected the explanation that the applicants were awaiting proceedings. He noted that there was no demonstration that the intended appeal had reasonable prospects of success, and concluded that extension of time would unduly prejudice the respondent. He therefore dismissed the motion with costs. 7. The applicants, being dissatisfied with the decision of the learned single Judge, filed the Reference now before us by the letter of Reference dated 18th November, 2022. Page 4 of

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8. The Reference came before the Court for hearing virtually on 28th April, 2026. Mr. Muinde, learned counsel, appeared for the applicants and relied on his submissions. In his brief highlights, counsel reiterated the arguments in the earlier submissions and in the supplementary submissions filed in rejoinder to the respondent’s submissions. He argued that the learned Judge misread the period of delay to be eleven months, when in reality it was only two months, when the matter “fell off the radar in the office.” Further, that the appeal was arguable on the question of whether the respondent had obtained letters of administration when she filed the case. 9. Mr. Gichoya, learned counsel, appeared for the respondent and relied entirely on his written submissions, adding that the applicant appealed only the ruling on review and not the judgment. 10. The principles that govern a Reference under rule 57 are well settled. This Court does not sit on appeal on the ruling from the single Judge. Intervention is warranted only where it is shown that the learned Judge failed to take into account a relevant factor, or he took into account an irrelevant one, or misdirected himself on the law, or reached a decision that is plainly wrong. 11. In Daima Bank Limited (In Liquidation) v Prof. David Musyimi Ndetei, [2011] eKLR (Civil Appeal No. 171 of 2010), this Court referred to its ruling in a Reference to the full Court in John Koyi Waluke v Moses Masika Wetangula & 2 Others Civil Appeal (Application) No. 307 of 2009 (Unreported) where this Court stated thus: Page 5 of

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“…… we have stated time without number that in exercising the unfettered discretion under Rule 4 of this Court’s Rules, a single judge of the Court is doing so on behalf of the whole Court and the full bench of the Court would only be entitled to interfere with the exercise of discretion, if it be shown that in the process of exercising the discretion the single judge has taken into account an irrelevant matter which he ought not to have taken into account, or that he failed to take into account a relevant matter which he ought to have taken into account, or that he misapprehended some aspect of the evidence and the law applicable, or short of these, that this decision was plainly wrong and could not have been arrived at by a reasonable tribunal properly directing itself to the evidence and the law. It is not enough for example, to show the full Court that had it been sitting in place of the single judge it would have arrived at a different result” 12. We have carefully considered the material that was before the learned Judge and the arguments advanced. The Court’s mandate to exercise the discretion to extend time otherwise limited by the rules, or decision of this Court, or Superior Court is unfettered. It is donated by rule 4 of this Court’s Rules 2022 which provides as follows: “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.” 13. This Court in Fakir Mohamed vs Joseph Mugambi & 2 others [2005] eKLR (Civil Application No. Nai 332 of Page 6 of

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2004), stated that the exercise of this Courts discretion under rule 4 Page 7 of

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has followed a well-beaten path since the stricture of “sufficient reason” was removed by the amendment in 1985. There is therefore, no limit to the number of factors that the court would consider so long as they are relevant. 14. In Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others, Supreme Court of Kenya Application No. 16 of 2014, the Supreme Court gave guidance on the exercise of this discretion as follows: “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 an 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. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court’ 5. Whether there will be any prejudice suffered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petition, public interest should be a consideration for extending time.” These are the principles that guide this Court in the exercise of the discretion under rule 4 15. The applicant argues that the Notice of Appeal was lodged on 26th July, 2021. the critical issue remains the subsequent Page 8 of

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delay in taking the next steps required to perfect the appeal. Page 9 of

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The certificate of delay accounts for the period of 278 days up to 27th April 2022. Thereafter, a further period of approximately two months lapsed before the motion was filed. That additional period was explained only as “partly inadvertence.” In the circumstances of this case, where the applicants had already withdrawn an earlier Notice of Appeal against the main judgment and had failed in a subsequent review application, the learned Judge was entitled to regard the overall delay as inordinate and the explanation as insufficient. 16. On the question of arguability, the learned Judge correctly observed that the applicants had placed little material before him to demonstrate that the intended appeal raised a bona fide issue worthy of full consideration by the Court on appeal. The point concerning letters of administration, was one that could, and should have been pursued in the appeal against the judgment of 28 th June 2019, and not in a review application. The applicants themselves chose to abandon that appeal. Having elected to take the review route and failed, they cannot complain that the learned Judge undervalued the strength of a proposed appeal against the review ruling. 17. Finally, on prejudice, we note that the respondent has held a judgment in her favour since June 2019. Successive applications by the applicants have had the practical effect of suspending the enjoyment of that judgment for seven years. The learned Judge properly balanced this factor against the applicants’ explanations and concluded that the justice of the Page 10

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case required the dismissal of the motion. We see no error in that assessment. 18. In the result, we are satisfied that the learned Judge correctly identified the governing principles, considered the relevant factors, and reached a decision that was open to him on the material placed before him. No basis has been shown for this Court to interfere with the exercise of his discretion. The reference is accordingly dismissed with costs to the respondent. Orders accordingly. Dated and Delivered at Nyeri this 25th day of September, 2026 MUMBI NGUGI .......................... ... JUDGE OF APPEAL L. ACHODE ………………..….. JUDGE OF APPEAL PAUL LILAN …………….…..….. JUDGE OF APPEAL Page 11

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