THEURI v NJERI & 23 others; JOSEPH GITUMA NDEGWA & 29 OTHERS & 29 others

3. The background to the application is largely undisputed. The ruling sought to be challenged was delivered on 24th February 2017. The applicant lodged a notice of appeal on 2nd March 2017 and served it upon the parties. On 6th March 2017, the applicant's advocates requested certied copies of the proceedings, ruling and order and paid the requisite fees. 4. The record further shows that the applicant's advocates followed up the request with the Deputy Registrar by a letter dated 31st March 2017. Uncertied proceedings became available on 5th June 2017. The certied typed proceedings and ruling were supplied on 14th June 2017, the order was extracted on 5th July 2017, and a certicate of delay was issued on 14th July 2017. 5. The applicant contends that by the time the proceedings and ruling became available, the time for lodging the record of appeal had expired and that the delay was attributable to the court registry. The applicant maintains that he has not been indolent and that the intended appeal raises serious issues concerning the High Court's refusal to permit an amendment of the pleadings. In particular, the impugned ruling arises from an application dated 25th July 2016 led by the applicant, seeking to correct a clerical error in the judgment of the High Court dated 14th December 2012. The applicant avers that the interested parties shall not be prejudiced by the orders sought and it is in the best interests of justice to extend the time for ling and serving the record of appeal. 6. The interested parties, through a replying adavit sworn by their counsel, Omondi T. Ochieng, on 13th May 2024, contend that the application is bad in law and an abuse of the process of the Court. They submit that the prayer for extension of time is discretionary and that the applicant has failed to annex a draft memorandum of appeal to demonstrate the nature of the intended challenge. 7. They further contend that the applicant has failed to satisfy the established principles governing the exercise of the Court’s discretion, particularly with regard to the length and explanation of the delay, the chances of the intended appeal succeeding, and the prejudice likely to be occasioned to the interested parties. In their view, the intended appeal merely challenges the trial court’s refusal to allow amendment of the pleadings after judgment and would therefore be inconsequential. 8. The interested parties further argue that allowing the intended appeal would amount to permitting the applicant to amend the plaint long after judgment, thereby occasioning them substantial prejudice. They contend that they would be denied an opportunity to respond to any new issues or evidence arising from such amendment. 9. On the arguability of the intended appeal, the interested parties submit that the chances of success are virtually nil, as no arguable point of law has been demonstrated and the appeal would merely seek to interfere with the trial court’s exercise of discretion. Consequently, they urge the Court to nd that the applicant has failed to meet the requisite threshold for extension of time and to dismiss the application with costs as an abuse of the Court process. 10. The applicant led a supplementary adavit sworn on 11th August 2020, stating that the respondents had previously led a notice of preliminary objection dated 3rd May 2018, challenging the application on the ground that leave to appeal had not been sought. Following oral submissions by counsel on 7th May 2018, the Court dismissed the preliminary objection on 8th June 2018 and directed that the applicant’s application proceeds to hearing in the usual manner. 11. The applicant contends that the respondents’ grounds of opposition dated 12th February 2020 (which is not before the Court) and the interested parties’ replying adavit led on 10th March 2020 raise substantially the same objections that had formed the basis of the dismissed preliminary objection. He https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1771/eng@2026-09-16 2

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argues that those issues were conclusively determined by the court and that, because the ruling has not been reviewed, the respondents are barred from raising them afresh. 12. The applicant further maintains that the respondents’ renewed objections are made in bad faith, constitute an abuse of the Court process, and unnecessarily delay determination of the application to his detriment. He asserts that the respondents have demonstrated no prejudice from allowing the intended appeal to proceed and therefore urges the Court to dismiss the grounds of opposition and allow his application for an extension of time to le the record of appeal. 13. Learned counsel for the applicant led submissions and a list of authorities both dated 8th May 2024. In addressing legal principles under rule 4 and rule 82(1) of the Court’s Rules, counsel references Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231, to submit that while exercising its discretion the Court should assess the length and reason for delay, the appeal’s prospects of success, and the degree of prejudice to respondents. 14. Counsel contends that the delay was moderate, justiable, and caused purely by registry delays, while the intended appeal, centred on an application dated 25th July 2016, to correct a clerical error in a 2012 judgment, holds strong merits. Counsel urges the Court to grant leave to le and serve the record of appeal in the interest of justice. 15. Learned counsel for the interested parties has led submissions and a case digest both dated 13th May 2024, and submits that granting an extension of time under rule 4 of the Rules is discretionary, citing Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (supra) and Mathenge v Mathenge (Civil Application 50 of 2010) [2013] KECA 199 (KLR). 16. Counsel highlights criteria for exercising the discretion being sought, which requires the court to consider the length of the delay, the reasons behind it, the appeal's chances of success, potential prejudice to the opposing parties, and whether public interest issues are raised. Based on these factors, counsel argues the applicant has failed to provide a plausible explanation for the delay, demonstrate a chance of success, or prove that the appeal raises triable issues. 17. Furthermore, counsel points out that the underlying ruling being challenged involves the High Court's proper refusal to allow the applicant to amend core pleadings long after a judgment had already been delivered, an issue that does not stem from a mere clerical error. Counsel argues that the application was brought after an unreasonable delay, lacks good faith, and would prejudice the interested parties by seeking to overturn a trial court decision rendered on the merits and with nality. Ultimately, counsel urges the Court to decline exercising its discretion in the applicant's favour and to dismiss the application with costs. 18. I have considered the application, the adavits, the submissions and the material placed before the Court. The issue for determination is whether, in the circumstances of this matter, the Court should exercise its discretion under rule 4 of the Court’s Rules in favour of the applicant. 19. The jurisdiction under rule 4 is discretionary and unfettered, but, the discretion must nevertheless be exercised judicially. The Court is required to consider, amongst other matters, the length of the delay, the reason for the delay, the possible arguability of the intended appeal and the prejudice likely to be suered by the respondent. The list is not exhaustive. See PG Security Limited v Ndiwa (Civil Application E009 of 2026) [2026] KECA 447 (KLR). 20. It is also settled that the Court should balance the competing interests of the parties. In Macharia & Another v Githinji (Civil Application 127 of 2020) [2021] KECA 99 (KLR), this Court emphasised that the degree of prejudice involves balancing the injustice to the applicant if an extension is refused against the prejudice to the respondent if an extension is granted. The Court is also required to bear https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1771/eng@2026-09-16 3

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in mind the competing interests of a successful party, on the one hand, and a party's constitutionally protected right to pursue an appeal, on the other. 21. The applicant led his notice of appeal promptly and, on 6th March 2017, shortly thereafter, requested typed proceedings. There is evidence that counsel followed up the request on 31st March 2017. Ultimately, a certicate of delay was issued on 14th July 2017. That certicate is signicant because the rules of this Court provide a mechanism by which the period certied by the Registrar as required for the preparation and delivery of the proceedings is excluded when computing the period within which the appeal ought to be instituted. 22. In Nehemiah Kimathi & Another v Grace Wambui Muriuki & 12 Others [2020] KECA 45 (KLR), this Court explained that the certicate of delay is what enables the Court to exclude the time taken by the superior court in preparing the typed proceedings from the computation of the prescribed sixty days. 23. The rules also require an appellant who seeks to rely upon that exclusion to have made the application for proceedings in writing and to have served a copy upon the respondent. This requirement has been repeatedly emphasised by this Court. See, for example, Daniel Waiganjo Githinji v Kenpipe Cooperative Savings & Credit Society Limited [2016] eKLR, where the Court held that failure to comply with the requirement meant that the applicant could not take advantage of the proviso excluding the period certied as necessary for preparation of the proceedings. 24. I deliberately set out the chronology of events as they disclose a misunderstanding of the appellate process on the part of counsel. Once the applicant had properly invoked the proviso to rule 84 which states “Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certied by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy” and obtained the certicate of delay, there was no necessity to move this Court for an extension merely because the original sixty-day period had elapsed. The period certied as having been required for preparation and delivery of the proceedings was capable of being excluded from the computation. 25. The application appears to have been prompted by the erroneous assumption that, once the sixty-day period had run out an application for extension became necessary notwithstanding the subsequent issuance of a certicate of delay. 26. From the above analysis, the application was unnecessary; however, in order to expedite the matter, I make the following orders: a. The memorandum and record of appeal shall be led and served within thirty (30) days from the date of this ruling. d. The costs of this application shall abide the outcome of the intended appeal. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2026. ALI-ARONI …………………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1771/eng@2026-09-16 4

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I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1771/eng@2026-09-16 5

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