Thomas v Jilani & another

Record of Appeal was occasioned by her former advocates, and was not deliberate on her part; that the intended appeal raises serious arguable and weighty issues; and that no prejudice would be occasioned to any party if the orders sought are granted. 3. Learned counsel for the applicant, M/s Makambo Makabila & Co. Advocates, led written submissions and a case digest dated 6th May 2026, which I have duly considered. 4. The 1st respondent, Joel Ngala Jilani, swore a replying adavit on 5th April 2026 in opposition to the application, deponing that: the period for ling the Record of Appeal had lapsed by one year and four months; that it was the applicant’s duty to follow up her matter and cannot blame her previous advocates; that the applicant has not disclosed the date when they received the certied copies of proceedings; that the reasons given for the inordinate delay are unreasonable; and that the applicant has been indolent and economical with the truth. 5. Notably, the 2nd respondent did not reply to the applicant’s Motion or le any written submissions, but made oral submissions in opposition. 6. When the applicant’s Motion came up for hearing on the Court’s virtual platform on 27th July 2026, Miss Kimiti for the applicant, Miss Oloo holding brief for Mr. Kilonzo for the 1st respondent and Mr. Majanja (a director of the 2nd respondent company) were present and ready to proceed. 7. Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to “… 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 …,” on such terms as it thinks just. 8. As was enunciated in Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA p231, the basic factors to be considered in exercise of the Court’s discretion in determination of applications under rule 4 are: (i) the length of the delay; (ii) the reason for the delay; (iii) the chances of the appeal succeeding if the application is granted; and (iv) the degree of prejudice to the respondent if the application is granted. In principle, the discretion is unfettered, and there is no limit to the number of factors the court would consider so long as they are relevant (see also Fakir Mohammed v Joseph Mugambi and two others [2005] eKLR). 9. With regard to the merit of the appeal, it is sucient for the applicant to demonstrate that they have an arguable appeal with the likelihood of success. Having considered the numerous grounds of appeal set out in the Memorandum of Appeal dated 8th April 2026, I form the view that the applicant has demonstrated that the intended appeal is arguable, and that it is not frivolous. Whether or not it will succeed in whole or in part is not for me to judge. Be that as it may, I hasten to add that the applicant must rst surmount the hurdles resulting from the delay and the need to provide sucient explanation therefor 10. With regard to the period of delay, the Court of Appeal in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR observed that “… the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s ow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favourably exercisable.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1793/eng@2026-09-25 2

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11. I take to mind the fact that the notice of appeal from the judgment and decree dated 9th December 2024 is dated 10th December 2024; that via a letter dated 11th December 2024 to the Deputy Registrar of the ELC Malindi and copied to the advocates on record, the applicant’s previous advocate requested for certied copies of proceedings; that, by a letter dated 18th July 2025 addressed to the Deputy Registrar, counsel for the applicant’s and for the respondent’s consented to the applicant’s counsel now on record taking over the matter from the applicant’s previous counsel; and that, on 29th July 2025, the applicant’s advocates now on record wrote to the Deputy Registrar with a copy to counsel for the respondents requesting for certied copies of the proceedings. 12. It is instructive that certied copies of the proceedings had been released to counsel then on record for the applicant sometime in June 2025. Yet no steps have been taken to le the record of appeal more than a year later. Moreover, the record as put to me does not contain a certicate of delay to ascertain the actual period of delay since the applicant lodged her notice of appeal two-and- half years ago in December 2024. In the circumstances, I can only conclude that the delay is inordinate, and has not been suciently explained. 13. As regards the issue as to whether the extension of time to le the intended appeal will cause undue prejudice to the respondents, none of the respondents alludes to any undue prejudice. All I can say is that litigation must come to an end (see Grace Samson Komen v William Kiprop Komen & 2 others [2017] eKLR; and the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR, which sets out the guiding principles for extending time, underscoring the public interest in nality of litigation). 14. Having carefully considered the applicant’s Motion, the grounds on which it was founded, the adavit in support, the submissions by learned counsel, the cited authorities and the law, I come to the inescapable conclusion that the applicant’s Notice of Motion dated 9th April 2026 fails and is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. DR. K. I. LAIBUTA CArb, FCIArb. ........................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR 1 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1793/eng@2026-09-25 3

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