Gitau & 2 others v Chelangat & 2 others

to present themselves for DNA sampling as directed on 28th April 2025 within 7 days from the said date. 3. Being aggrieved by that decision, the applicants lodged a notice of appeal on 8th October 2025, and simultaneously requested for copies of the proceedings on 7th October 2025. They also led an application for stay of execution pursuant to which they obtained orders of stay pending appeal from this Court on 19th November 2025. 4. The applicants thereafter prepared and led a record of appeal on 18th November 2025, and served the same upon the respondents. However, it later transpired that the said record of appeal had been inadvertently led within the application for stay, being Nakuru COA Civil Application No. E099 of 2025, rather than as an independent appeal in the registry. The applicants aver that this was an honest and inadvertent mistake occasioned by the manner in which documents were being processed at a cyber café and that upon realization of the error, they immediately moved this Court by way of the present application. 5. The application is not opposed. The respondents were duly served with the application but did not le any response thereto. 6. I have considered the application, the supporting adavit, and the submissions led by the applicants. The singular issue for determination is whether the applicants have made out a case for the exercise of this Court's discretion under Rule 4 of the Rules which provides: “ The Court may, on such terms as may be 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, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 7. In Abdul Azizi Ngoma vs. Mungai Mathayo [1976] KECA 16 (KLR), this Court held: “ We would like to state once again that this court’s discretion to extend time under rule 4 only comes into existence after ‘sucient reason’ for extending time has been established and it is only then that other considerations such as the absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.” 8. The applicants have relied on the decision in Dominic Okodoi vs. Republic [2021] eKLR, where this Court reiterated that Rule 4 confers upon the Court an unfettered discretion to extend time, exercisable on such terms as the Court thinks just, whether before or after the doing of the act. The applicants have also relied on Leo Sila Mutiso vs. Hellen Wangari Mwangi [1999] 2 EA 231, where the Court set out the principles governing the exercise of this discretion, namely: the length of the delay; the reason for the delay; the possibility of the appeal succeeding if the application is granted; and the degree of prejudice to the respondent if the application is granted. 9. The delay is attributed to the inadvertent ling of the record of appeal in the wrong le. The applicants have averred that, upon discovering the error, they took prompt and diligent steps to rectify the same. The respondents have not placed any material before the Court to rebut or controvert the applicants’ averments. 10. On the length of the delay, the applicants led the record of appeal well within the sixty days contemplated under Rule 82 of the Rules. The subsequent delay occasioned by the misling of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2109/eng@2026-10-07 2

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record is not inordinate, and the applicants moved this Court with reasonable promptitude upon discovering the mistake. 11. On the arguability of the intended appeal, the applicants have annexed a memorandum of appeal setting out several grounds which, prima facie, disclose bona de issues warranting consideration by the Court. While I need not delve into the merits of the appeal at this stage, I am satised that the intended appeal is arguable and not frivolous. 12. As regards prejudice, I am not persuaded that the respondents would suer any prejudice incapable of being adequately compensated by an award of costs should the application be allowed. The respondents, having been duly served, did not le any response to the application or otherwise demonstrate any prejudice that they are likely to suer. On the other hand, the applicants risk being denied the opportunity to exercise their right of appeal due to an inadvertent procedural error, with consequences that may not be adequately remedied by an award of costs. 13. Accordingly, I allow the application and order the applicants to le and serve their record of appeal within 21 days from the date of this ruling. Costs of this application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAKURU THIS 7TH DAY OF OCTOBER, 2026. J. MATIVO ........................... 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/2026/2109/eng@2026-10-07 3

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