Nyambai & 2 others v Gari & 18 others

but the court le could not readily be traced and the proceedings and judgment were only certied and made available to them on 9th February, 2026. 3. In all fronts, the applicants' case is that they demonstrated a clear and consistent intention to pursue an appeal immediately after delivery of the impugned judgment, as evidenced by the timely ling of the Notice of Appeal and repeated requests for proceedings. They contend that the delay in ling the appeal was neither deliberate nor attributable to their indolence but was occasioned by factors beyond their control, including diculties in tracing the court le and the delay in availing certied proceedings. They therefore urge the Court to nd that the delay has been satisfactorily explained, that they are innocent of any default giving rise thereto, and that the interests of justice warrant the exercise of the Court's discretion in their favour. 4. The application is opposed. By Replying Adavit sworn by Omonde Kisera, learned counsel for the respondents deposes that the application is misconceived, devoid of merit and constitutes an abuse of the court process. That the impugned judgment was delivered on 20th March, 2025, in the presence of the parties and that despite the lapse of more than one year, the applicants failed to take the necessary steps to institute an appeal within the timelines prescribed by the Court of Appeal Rules. 5. The deponent further states that no Notice of Appeal was lodged and served on him as required by law and that the applicants only led a request for proceedings long after the delivery of judgment. He contends that the explanation advanced by the applicants is untruthful and is contradicted by a letter from the Deputy Registrar dated 10th March, 2026, which conrms that the certied proceedings and judgment were ready and were in fact collected on 6th August, 2025. According to the respondents, the applicants have failed to explain their inactivity from the date of judgment and, more particularly, from the date when the proceedings were collected. 6. The respondents further contend that the delay, being in excess of one year, is inordinate, inexcusable and indicative of indolence on the part of the applicants. It is deposed that the applicants have deliberately concealed material facts relating to the collection of the proceedings and have failed to discharge the burden of providing a satisfactory explanation for the entire period of delay. He maintains that any alleged delay in the preparation of proceedings cannot excuse a party from complying with the mandatory requirements relating to the lodging of a Notice of Appeal and the institution of an appeal within the prescribed timelines. 7. According to the respondents therefore present application is a mere afterthought intended to revive a claim that has long since become stale. They urge me to uphold the principle that litigation must come to an end and decline to exercise my unfettered discretion in favour of a party who has failed to demonstrate any sucient or excusable cause for the delay. Consequently, the respondents pray that the application be dismissed with costs. 8. Counsel in his written submissions in support of the application pointed out, that the Court's jurisdiction under Rule 4 of the Court of Appeal Rules is discretionary and should be exercised in accordance with the principles settled by precedent. Reliance was placed on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2013] eKLR, where the Supreme Court opined that extension of time is not a right but an equitable remedy available only to a deserving party, and that an applicant bears the burden of laying a satisfactory basis for the exercise of the Court's discretion. That the factors to be considered include but not limited to whether the delay has been satisfactorily explained, whether the application was brought without undue delay, whether prejudice would be occasioned to the respondent, and whether the circumstances of the case justify the grant of the equitable relief sought. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1772/eng@2026-09-23 2

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9. Counsel further submitted that the discretion under Rule 4 ought to be exercised in a manner that advances substantive justice rather than defeats it on account of procedural lapses. It was argued that where a party demonstrates a plausible explanation for non-compliance with prescribed timelines, the Court should lean in favour of sustaining rather than terminating the intended appeal. 10. On the arguability of the intended appeal, counsel relied on Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd - Civil Application No. Nai 345 of 2004, for the proposition that an applicant need not establish a multiplicity of arguable grounds to merit the Court's intervention, and that the existence of even a single bona de arguable issue is sucient to satisfy that requirement. The applicants therefore urged the Court to avoid conducting a mini appeal at the interlocutory stage and instead conne itself to determining whether the intended appeal raises at least one deserving point for consideration by the appellate court. 11. Counsel additionally submitted that, in considering whether to grant the orders sought, the Court ought to take into account the absence of demonstrable prejudice to the respondents. It was argued that where no specic prejudice capable of outweighing a party's right of appeal has been demonstrated, the interests of justice favour allowing a litigant an opportunity to exhaust the appellate process. Consequently, the applicants urged the Court to exercise its discretion in their favour and grant the orders sought, with costs following the event. 12. In response, counsel for respondents in his written submissions, argued that the power to extend time under Rule 4 of the Court of Appeal Rules is discretionary and must be exercised upon established principles. Reliance was placed on Leo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997, wherein the Court held that the relevant considerations in an application for extension of time include the length of the delay, the reason for the delay, the prospects of the intended appeal, and the prejudice likely to be occasioned to the respondent. Counsel submitted that those factors must be considered holistically and that an applicant bears the burden of demonstrating sucient cause for the Court's intervention. 13. Counsel further submitted that the discretion conferred upon the Court is judicial in nature and cannot be exercised in favour of a party who has failed to account satisfactorily for the delay in question. In this regard, counsel relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra), Counsel therefore contended that compliance with prescribed timelines remains a fundamental requirement in appellate litigation. 14. Counsel also cited Mwangi v Kenya Airways Ltd [2003] eKLR for the proposition that, in addition to the length and reason for delay, the Court may properly take into account the eect of the delay on the administration of justice, the need for compliance with procedural timelines, and the broader interests of justice. It was submitted that unexplained or inordinate delay militates against the favourable exercise of the Court's discretion. 15. Counsel further relied on Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, where this Court emphasized that although the discretion under Rule 4 is unfettered, it must be exercised on the basis of sound judicial principles and upon consideration of all relevant circumstances of the case. Counsel submitted that the Court should decline to extend time where no satisfactory explanation has been availed for the entire period of delay. 16. On the question of the arguability of the intended appeal, counsel submitted that an applicant seeking the Court's discretion must demonstrate that the intended appeal is not frivolous. It was contended that the draft memorandum of appeal disclosed no arguable issues warranting the intervention of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1772/eng@2026-09-23 3

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appellate court and that the impugned judgment did not disclose any error of law or fact capable of upsetting the decision of the trial court. 17. Lastly, counsel submitted that the Court ought to be guided by the principle of nality in litigation and the right of a successful litigant to enjoy the fruits of his judgment. It was argued that reopening concluded litigation without sucient cause undermines certainty in the administration of justice and occasions undue prejudice to successful parties. Accordingly, the respondents urged the Court to nd that the applicant had failed to satisfy the threshold for extension of time and to dismiss the application with costs. 18. I have carefully considered the application, the grounds appearing on its face, the adavits sworn by Asinath Ogutu, the Replying Adavit sworn by Omonde Kisera, and the rival submissions led by counsel for the parties. The application seeks the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules to enlarge time within which the applicants may institute an appeal against the judgment and decree delivered on 20th March, 2025, in Migori ELC No. 32 of 2020. 19. The law governing applications of these nature is largely settled. Rule 4 of the Court of Appeal Rules confers upon this Court wide and unfettered discretion to extend time. However, that discretion must be exercised judiciously and not capriciously. On the strength of a long line of authorities it is settled that whether or not to extend time is discretionary and will depend on the length of the delay; the reason for the delay; the degree of prejudice to the respondents if the application is granted; and (possibly) the chances of the appeal succeeding if the application is granted. See Leo Sila Mutiso V. Rose Hellen Wangari Mwangi (supra). 20. From the material placed before me, it is not disputed that the impugned judgment was delivered on 20th March, 2025, whereas the present application was lodged on 30th March 2026. The period between those two dates is approximately 375 days, a delay that is undoubtedly inordinate and which calls for a plausible and satisfactory explanation. 21. The applicants contend that they demonstrated a clear intention to challenge the impugned judgment by ling a Notice of Appeal shortly after delivery of judgment and by seeking certied proceedings for purposes of preparing the record of appeal. Their position is that the delay was occasioned by diculties encountered in obtaining the proceedings and tracing the court le, matters which they contend were beyond their control. 22. The respondents take a contrary position. They contend that the proceedings were in fact ready and collected much earlier than disclosed by the applicants and that the applicants have failed to account for the entire period of delay. The respondents therefore argue that the explanation tendered is neither candid nor sucient and cannot justify the exercise of this Court's discretion. 23. I have anxiously considered the rival contentions. It bears repeating that an applicant seeking enlargement of time must explain the whole period of delay. The explanation need not be perfect, but it must be reasonable, credible and sucient to enable the Court understand why the prescribed timelines were not complied with. In the present application, although the respondents have challenged the chronology of events advanced by the applicants, the material before me nevertheless demonstrate that the applicants did not remain completely inactive following the delivery of judgment. The evidence presented reveals eorts directed towards initiating the appellate process and obtaining documents necessary for the preparation of an appeal. 24. Of equal importance is the principle that disputes should, where possible, be determined on their merits. In Belinda Murai & 9 Others v Amos Wainaina [1979] eKLR, the Court observed that a mistake is a mistake and that a litigant ought not invariably to be shut out from the seat of justice on account https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1772/eng@2026-09-23 4

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of the errors of counsel. While that principle cannot be invoked to excuse every default and lethargy, it remains a relevant consideration where the Court is called upon to balance procedural compliance against substantive justice. 25. I have also considered the arguability of the intended appeal. At this stage, I am not required to determine the merits of the appeal with nality. As was held in Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd (supra), an applicant need only demonstrate the existence of a bona de arguable point deserving consideration by the appellate court. Upon perusal of the draft memorandum and the material placed before me, I am satised that the intended appeal cannot be said to be frivolous. 26. As regards prejudice, the respondents are undoubtedly entitled to enjoy the fruits of a judgment obtained in their favour. Nonetheless, the prejudice likely to be occasioned by the extension sought is, in my view, compensable by an award of costs. Indeed, the respondents concede to that fact in their written submissions. On the other hand, declining the application would eectively lock the applicants out of the appellate process and permanently deny them an opportunity to challenge the impugned decision. 27. The Court must also remain faithful to the constitutional imperatives under Articles 48, 50 and 159 of the Constitution of Kenya, which require courts to facilitate access to justice and determine disputes without undue regard to procedural technicalities. While procedural timelines serve an important purpose in the administration of justice, they should not, in an appropriate case, be applied in a manner that defeats substantive justice. 28. Having weighed all the relevant considerations, I am persuaded that this is a proper case for the exercise of the Court's discretion under Rule 4 of the Court of Appeal Rules. 29. Accordingly, the Notice of Motion dated 30th March, 2026, is merited and is hereby allowed. Time within which the applicants may lodge and serve the intended appeal is hereby enlarged. The applicants shall le and serve the Record of Appeal within the next fourteen (14) days from the date of this ruling. The respondents shall however have the costs of the application. DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF SEPTEMBER, 2026. ASIKE MAKHANDIA ………………………………… 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/2026/1772/eng@2026-09-23 5

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