Banareri (Legal Representative of the Estate of Sebastiano Nyandwar Ondima (Deceased)) v Okondo

on or before 24th March, 2025. She eventually led and served the record of appeal on 23rd May, 2025, approximately 60 days past the timeline. 3. Ms. Nyaboke asserted that the delay in ling and serving the record of appeal was neither deliberate nor inordinate but occasioned purely by an inadvertent mistake on her part, which she regrets. That the applicant was at all times desirous of prosecuting the appeal and should not be penalized for counsel’s mistake. She also noted that the intended appeal raises arguable issues with high chances of success and is not frivolous. In addition, no prejudice shall be occasioned to the respondent should the application be allowed, as the record of appeal has already been led and served. Ms. Nyaboke urged the Court to thus extend time for ling the record of appeal dated 15th March, 2025 and deem it duly led and served. 4. Opposing the application, the respondent led a replying adavit sworn by her advocate, Jeremiah Onsare Soire. Mr. Soire stated that the applicant has not oered a plausible explanation for the inordinate delay and has been guilty of indolence and laxity. He noted that the appellant only moved the Court after the respondent led an application to strike out the defective pleading. That whereas the said application to strike out the appeal was led and served sometime in June 2025, the instant application was led eight months later in February 2026. He asserted that the applicant had failed to demonstrate good faith and was abusing the court process, and that allowing the application would prejudice the respondent. Mr. Soire urged that litigation must come to an end and that the discretion to extend time is not automatic and must be exercised judiciously. He called for dismissal of the application with costs. 5. This application was listed before me on 16th September, 2026 as a chamber matter for consideration in the absence of the parties or their advocates. It is for determination based on the material on record. 6. The applicant led written submissions dated 9th September, 2026. She noted that in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR, the Court emphasised that the factors identied in Leo Sila Mutiso are not exhaustive and must be considered in the circumstances of each case. The appellant urged that she does not seek to excuse the lapse but respectfully asks the Court to consider the explanation in the context of the conduct of the entire matter. That the Court has recognised that an excusable mistake or error on the part of counsel may constitute sucient reason for enlargement of time (see Towett v Kibaru & another (Civil Application E191 of 2025) [2025] KECA 1650 (KLR) (9 October 2025) (Ruling) and Shital Bimal Shah & 2 others v Akiba Bank Limited & 4 others, Civil Application No. 159 of 2005 [2006] 2 EA 323). That further, in Sea Angel Service Station Limited v Abdul [2022] KECA 1265 (KLR), the Court reiterated that the discretion under Rule 4 of the Court of Appeal Rules may be exercised where the circumstances demonstrate an inadvertent delay and where the interests of justice favour allowing the matter to proceed on its merits. The applicant also noted that in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court held that the applicant must lay a satisfactory basis for extension, explain the delay, demonstrate that the application has been made without undue delay and satisfy the Court on the issue of prejudice. 7. It was the applicant’s submission that the delay was satisfactorily explained, was not inordinate, was occasioned by an inadvertent mistake of counsel, has caused no demonstrable prejudice to the respondent, and the intended appeal raises arguable issues. She contended that the respondent has not demonstrated any substantial prejudice that cannot be compensated with an order as to costs. 8. The respondent did not le any written submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1947/eng@2026-09-25 2

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9. This Court has a wide discretion under Rule 4 of the Court of Appeal Rules to consider an application for extension of time. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 laid down the parameters to be considered in an application for extension of time as follows: It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: rst the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 10. In the present application the delay was for 60 days and the applicant’s counsel has taken responsibility duly explained as inadvertence on the part of counsel. In absence of any other material on record to rebut the explanation, the same appears genuine. The applicant appears to otherwise have taken all other relevant steps to pursue the intention to appeal manifested in timely application for typed certied proceedings, and, ling and serving the notice of appeal. The inadvertence by counsel therefore appears to have been a genuine mistake by counsel and not mere indolence that can validly be visited upon the applicant. In Babubhai Bhangwanji Amba Madhwani Vs. Maria Burton, SC Application No. E030 of 2025, the Supreme Court held as follows: Whereas mistakes of counsel ought not to be visited upon a litigant as we held in Waruhiu Vs Munene & another [2021] KESC 42 (KLR) and Gaciani & 11 others Vs Kimanga & another [2023] KESC 23 (KLR), there must be cogent and credible evidence that the applicant made some eort or acted diligently in the circumstances, by providing evidence of steps taken. It is not enough for a party to simply blame the former advocate for all manner of transgressions. As we held in Karinga Gaciani Case, “Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.” 11. The record shows no indolence on the part of the applicant and the undisputed evidence on record is that the delay in ling and serving the record of appeal was purely attributable to counsel’s mistake and was not deliberate. Am persuaded that the delay is excusable and the respondent’s prejudice can be suciently provided for by way of an order for costs. The memorandum of appeal raises seven grounds of appeal including whether the registration of the suit land in the respondent’s name was fraudulent and based on misrepresentation. 12. The upshot is that the delay is excusable. The applicant is granted leave for enlargement of time for ling and serving the record of appeal dated 15th March, 2025 which is hereby deemed duly led and served, accordingly. The costs of the application to abide the outcome of the appeal. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. B. ONGAYA ……………………… 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/2026/1947/eng@2026-09-25 3

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