Oduor v Ahero Girls Secondary School

to properly incorporate the decree and/or order appealed from as required under the Court of Appeal Rules. 4. The applicant further deposes that the judgment in Kisumu ELRC Appeal No. E023 of 2024 was delivered on 20th November, 2024, in his favour and that he has since commenced enforcement proceedings. He argues that unless leave is granted, he will be permanently shut out from challenging what he perceives to be an incompetent appeal intended to delay his enjoyment of the fruits of judgment. 5. The respondent opposes the application and contends that the delay has not been satisfactorily explained. It is deposed that the Record of Appeal was duly served upon the applicant's advocates on 22nd April, 2026 and that no explanation has been oered for the delay between that date and 27th May, 2026, when the applicant alleges, he became aware of the appeal. The respondent further contends that the illness relied upon only accounts for a brief period and does not explain the entire delay. 6. The respondent further deposes that the decree complained of is duly contained in the Record of Appeal thereof and that the intended strike- out application is itself devoid of merit. According to the respondent, the present application is merely an afterthought intended to delay the hearing and determination of the substantive appeal. 7. Rule 4 of the Court of Appeal Rules, 2022 provides that: “ 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." 8. The principles applicable in an application for extension of time are now well settled. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court underscored that extension of time is not a right of a litigant but an equitable remedy available at the discretion of the Court upon demonstration of a satisfactory basis. Similarly, in County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR, the Supreme Court emphasized that a court exercising its discretion must consider, inter alia, the length of the delay, the reason for the delay, the degree of prejudice likely to be occasioned to the opposite party, whether the application has been brought without undue delay, and whether the circumstances of the case warrant the exercise of the Court’s discretion in the interests of justice. These are the principles that shall guide this Court in determining the present application. 9. Having considered the application, the adavits on record, the rival submissions and the applicable law, the issue falling for determination is whether the applicant has established sucient grounds to warrant enlargement of time to le the intended application challenging the competence of the appeal. 10. The rst issue concerns the length of delay. The Record of Appeal was served upon the applicant's advocates on 22nd April, 2026. The period prescribed for bringing a challenge to the competence of the appeal expired on or about 22nd May 2026. The present application was led on 3rd June, 2026. Accordingly, the delay is approximately twelve days beyond the prescribed period. 11. In my view, a delay of approximately twelve days cannot, in the circumstances of this case, be described as inordinate. Courts have consistently distinguished short delays from prolonged and unexplained delays, and have generally leaned in favour of substantive determination where the delay is relatively brief and adequately explained. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1869/eng@2026-09-23 2

page 2 of 4

12. As regards the reason for the delay, the applicant has exhibited medical evidence showing that he suered from pneumonia and malaria and was granted one week o duty commencing 28th April, 2026. He has further explained that although service was eected upon his advocates on 22nd April, 2026, he personally became aware of the service on 27th May 2026 after receiving communication from his advocates. 13. While the respondent argues that service upon advocates constitutes service upon the client, I am persuaded that in considering an application under Rule 4, the Court must examine the practical circumstances surrounding the delay. The applicant has candidly explained that illness and delayed communication between himself and his advocates contributed to his inability to issue timely instructions. The explanation may not be perfect, but it is neither fanciful nor entirely implausible. 14. On whether the intended application is arguable, this Court is not called upon to determine the merits of the intended strike-out application. It suces that the applicant demonstrates the existence of at least one bona de arguable point. The intended application raises questions regarding compliance with timelines for ling appeals and compliance with the mandatory contents of a Record of Appeal under the Court of Appeal Rules. Such issues cannot be dismissed as frivolous at this stage. 15. With regard to prejudice, I am not persuaded that allowing the present application would occasion irreparable prejudice to the respondent. Should leave be granted, the respondent will still enjoy the full opportunity to oppose the intended strike-out application on its merits. Conversely, refusal of the application would completely deny the applicant an opportunity to challenge the competence of the appeal notwithstanding the relatively short delay involved. 16. I also take into account that the discretion under Rule 4 is intended to advance substantive justice rather than punish parties for excusable procedural lapses. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (supra), emphasized that extension of time is an equitable remedy to be granted where the circumstances of the case justify such intervention. 17. In the peculiar circumstances of this case, I am satised that the delay is short, the explanation oered is reasonably satisfactory, and the intended application raises arguable issues deserving consideration by the Court. The interests of justice would therefore be better served by allowing the applicant an opportunity to ventilate the intended challenge on its merits rather than shutting him out on account of a delay of approximately twelve days. 18. Consequently, I am satised that the applicant has persuaded this Court that the application is deserving of the exercise of the Court's discretion under Rule 4 of the Court of Appeal Rules, 2022. 19. Accordingly, the Notice of Motion dated 3rd June, 2026, is hereby allowed. Time is enlarged for the applicant to le and serve his intended application to strike out the Notice of Appeal and Record of Appeal. The intended application shall be led and served within the next fourteen (14) days from the date hereof. Costs of the application shall abide the outcome of the intended strike-out application. DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1869/eng@2026-09-23 3

page 3 of 4

Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1869/eng@2026-09-23 4

page 4 of 4