Njeru v Gisheko

27th April 2026 but was only supplied on 13th May, 2026; and that he has had incapacitating illness for the last 7 years and he was unable serve the notice of appeal within the required timeframe. 4. Appearing virtually before me on 31st July 2026 for the hearing of the application, the applicant relied on his further adavit and written submissions with brief oral arguments to supplement. He justied the delay involved on mistake of counsel maintaining that he was kept in the dark regarding the proceedings by his previous advocates and that a mistake by counsel should not be visited upon the litigant; that there were delays in obtaining typed proceedings and certied copies from the ELC, which although requested were not made available until May 13, 2026; that he has had a long-term poor health condition he has fought for seven years, which he claims made it physically impossible to eect personal service of the notice of appeal ‘within the mandatory 60-day window’. 5. In support, the applicant relied on the decision of this Court in the case of Margaret Gacigi Gecaga vs. Udi Mareka Gecaga & Quinvest Limited (Civil Application No. E316 of 2020), in which, he submitted, extension of time was granted under similar circumstances. He concluded by asserting that his intended appeal has a high chance of success; that the respondent will not be prejudiced by the extension of time, as all parties were already fully aware of the Notice of Appeal. 6. Opposing the application, learned counsel Mr. Fundi Kimanzi for the respondent relied on the respondent’s replying adavit and his written submissions in urging that the application is bad in law, fatally defective, and an abuse of the court process; that the applicant is guilty of inordinate delay having led a Notice of Appeal on 27th April 2026, that is 285 days after the judgment was delivered on 16th July 2025 well outside the mandatory 14 days window required by Rule 77 of the Court of Appeal Rules; and that the applicant led the notice of appeal without rst seeking the court's leave. 7. Counsel urged that there is insucient medical evidence to support the applicant’s assertion that he was prevented by his medical condition from taking the necessary steps in pursuit of his appeal; that the medical notes provided by the applicant are vague and unhelpful in that the specic disease alleged is not indicated, and neither has it been demonstrated that the applicant was incapacitated as he claims; that the outpatient card provided is insucient proof and actually suggests the applicant was not in a critical condition as he claims. 8. It was urged further that the applicant cannot simply blame his previous advocates without showing he personally followed up on the case; that waiting for typed proceedings is not a valid excuse for failing to le a Notice of Appeal, because such records are not a prerequisite for the ling of a notice of appeal; that the applicant has not attached a draft memorandum of appeal to support his plea that the intended appeal is arguable; that moreover, denying the application will not occasion any prejudice because the trial court simply maintained the status quo after nding the applicant had sued the wrong party. 9. It was submitted that the discretion of the court in a matter such as this cannot be based on sympathy or mercy but rather, must be exercised judiciously based on cogent reasons which the applicant has failed to provide. Cited in support were several decisions of the Court including: Gachugu vs. Karaine & 3 Others KECA 1411 (KLR); Muriuki vs. National Police Service Commission KECA 32 (KLR); Kaushik Panchamatia & 3 others vs. Prime Bank Limited & Another KECA 418 (KLR) and Priscilla Wambui Mathenge vs. Mary Wairimu Mathenge & Another KECA 96 (KLR). Counsel concluded by urging the Court to dismiss the application with costs, characterizing it as frivolous and devoid of merit. 10. I have considered the application, the adavits and the submissions against the principles applicable in matters of this nature. As the Supreme Court of Kenya stated in the case of Salat vs. Independent Electoral and Boundaries Commission & 7 Others (Application 16 of 2014) [2014] KESC 12 (KLR), extension of time is not a right of a party but an equitable remedy available to a deserving party at the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1894/eng@2026-09-25 2

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discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suered by the respondents if the extension is granted; whether the application is brought without undue delay; and whether public interest should be a consideration. 11. In the same vein, Waki, J.A in Fakir Mohamed vs. Joseph Mugambi & 2 others [2005] eKLR stated that: “The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the eect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance - are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi vs. Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General Civil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.” 12. In eect, although the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules, that discretion should be exercised judiciously and each case must be considered on its own facts. With that in mind, the judgment of the ELC as already stated was delivered on 16th July 2025. Under Rule 77(1) of the Court of Appeal Rules, the Notice of Appeal ought to have been led within 14 days of the decision, that is, by 30th July 2025. The current application was not led until 2nd June 2026. The applicant has given three explanations. First that he was kept in the dark by his previous advocates. Second that he was prevented by long term health condition. Third, that there was delay in provision of the typed and certied proceedings and judgment. 13. As regards the claim that he was kept in the dark by his advocates, he does not however demonstrate that he instructed his advocates to appeal against the judgment of the ELC and neither does he demonstrate any steps that he took to follow up the matter with his advocates for over nine months. Absent demonstration of exercise of diligence on the applicant’s part, this is not a satisfactory explanation. It is also not indicated, and neither is it clear what mistake is attributed to the previous advocates. As Waki, JA stated in the case of Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2015] KECA 987 (KLR): “ It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.” 14. Regarding the explanation that he was prevented by his long- standing illness from taking the necessary steps, I agree with counsel for the respondent that the material exhibited by the applicant in that regard is not helpful at all. It appears to comprise of dierent medicine prescriptions by Kanja Health Centre ranging from November 2024 to December 2026 and refers to “cough” with no mention of diagnosis or the ailment the subject of treatment. That material is insucient to support his claim of having been prevented from taking steps to le a notice of appeal in time on account an ailment that impaired his ability to function. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1894/eng@2026-09-25 3

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15. As regards the late supply of the proceedings by the ELC, counsel for the respondent is correct that these would not have been required for purposes of ling the notice of appeal. 16. In as much as I may sympathize with the applicant who is not represented for present purposes, no plausible or satisfactory explanation has been given for the delay and there is no material before me to form a basis on which to exercise the Court’s discretion in his favour. In the result the application dated 2nd June 2026 fails and is hereby dismissed with costs to the respondent. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, (P), FCIArb, CArb. ……………………………… 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/2026/1894/eng@2026-09-25 4

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