Rayori (Suing as the Legal Representative of the Estate of Martin Ochieng Rayori (Deceased) v Bondo & 3 others

supplied on 19th September 2024; and that the Record of Appeal was thereafter led on 4th November 2024 that was way out of time. In nutshell the applicant justies the circumstances surrounding the delay in ling the Record of Appeal outside the prescribed period of time. 3. The applicant led a Further Adavit, in which he annexed a Certicate of Delay showing that proceedings were applied for on 19th February, 2024, and availed on 19th September, 2024. 4. The Court directed that the application be canvassed by way of written submissions. As at the time the application came before me for hearing, only the applicant had complied with the directions and led written submissions. The respondents despite ample evidence of service of the application and hearing notice on them opted not to le any papers in opposition to the application nor written submissions. 5. In his written submissions through Messrs. Bruce Odeny & Company Advocates, the applicant submits that an appeal is required to be instituted by lodging a Memorandum and Record of Appeal within sixty days from the date of lodging the Notice of Appeal pursuant to Rule 84 of the Court of Appeal Rules. The applicant submits that he was unable to comply with those provisions, thereby necessitating the present application under Rule 4 of the Court of Appeal Rules, which grants the Court discretion to extend time. 6. The applicant relies on the decision of this Court in Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, where the Court held that in determining whether to extend time, the Court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, and the degree of prejudice that may be caused to the respondent if the application was to allowed. 7. On the length of and reason for the delay, the applicant submits that there is no maximum or minimum period of delay prescribed by law provided the delay is reasonable and plausible. In that regard, reliance is placed on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] Eklr. The applicant submits that the Notice of Appeal was led within time and that the delay relates only to the ling of the Memorandum and Record of Appeal. It is contended that the delay was occasioned by the late supply of typed proceedings, which had been applied for timeously, and that the Certicate of Delay demonstrates that it took 213 days for the proceedings to be availed to counsel for the applicant. 8. On the chances of success of the intended appeal, the applicant relies on Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, to submit that the intended appeal is arguable as it raises the questions whether the Environment and Land Court had jurisdiction to determine the dispute pursuant to section 26(3) of the Land Consolidation Act and whether there was fraudulent registration of the suit property in the 1st respondent’s name. 9. On prejudice, the applicant submits that the 1st respondent will not suer prejudice if the application is allowed because she is currently in occupation of the suit property and there are interim orders of stay of execution in force pending the hearing and determination of the appeal. The applicant consequently urges the Court to nd that the threshold under Rule 4 has been met and to allow the application. 10. I have considered the application, the adavits on record, and the submissions led by the applicant. The application is brought under Rule 4 of the Court of Appeal Rules, which vests in this Court a wide and unfettered discretion to extend time. That discretion, though wide, must be exercised judicially and on the basis of sound principles. 11. The principles applicable in an application of this nature are now settled. In Leo Sila Mutiso v Hellen Wangari Mwangi (supra), the Court stated that in exercising this discretion, the court considers, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2105/eng@2026-10-05 2

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among other factors, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding if the application is allowed, and the degree of prejudice likely to be suered by the respondent. 12. The judgment sought to be appealed against was delivered on 15th February 2024. The applicant lodged a Notice of Appeal and applied for certied proceedings on 19th February 2024 well within time. The material placed before the Court shows that the proceedings were not supplied until 19th September 2024. The applicant has exhibited a Certicate of Delay conrming the period taken in the preparation and supply of the proceedings. The explanation advanced for the delay is therefore borne out by the record. In my view, the delay has been suciently explained. The delay cannot wholly be attributed to the applicant, having arisen substantially from the time taken by the court to prepare and avail the proceedings necessary for the preparation of the Record of Appeal to the applicant. The explanation tendered is therefore plausible and satisfactory. 13. As regards the arguability of the intended appeal, it is not necessary at this stage to make denitive ndings on the merits. It suces that the applicant has identied issues intended to be raised on appeal, including the question of jurisdiction under section 26(3) of the Land Consolidation Act and the question whether the registration of the suit property in the 1st respondent’s name was fraudulent. Without saying more, I am satised that the intended appeal is not frivolous. 14. With regard to prejudice, the application was not opposed. No replying adavit or submissions were led by any of the respondents despite service of both the application and the directions by the Deputy Registrar of this Court on them. Moreover, the applicant contends that the rst respondent remains in occupation of the suit property and that interim orders of stay of execution of the judgment and decree are in force in her favour. I am therefore unable to discern any prejudice that may be occasioned to the respondents if the application is allowed. 15. Taking all the foregoing circumstances into account, and bearing in mind the need to facilitate the determination of disputes on their merits, I am satised that this is a proper case for the exercise of the Court's discretion in favour of the applicant. 16. Accordingly, the application is hereby allowed. The Record of Appeal led on 4th November 2024 is deemed as duly led and served within the prerequisite timelines upon payment of the requisite court fees, if any. The costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF OCTOBER, 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/2026/2105/eng@2026-10-05 3

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