Kimeli v Rotich

been advised by his advocate that his appeal has high chances of success. He and the respondent may imminently levy execution against the applicant. 3. The application is opposed through the replying adavit of Hosea Kipkoech Rotich, led on 1st September 2023. It is the respondent’s contention that the applicant never made an application to challenge the surveyor’s report before it was adopted as an order of the court; that the applicant had all the time to challenge the report but never did, that the applicant losing his phone is not a valid reason for being out of touch with the advocate as the physical address of the advocate has not changed; that the applicant’s actions were negligent due to his inaction to visit the advocate or court registry for inquiries. 4. He avers avers that the application lacks merit and sucient reasons to le an appeal out of time and relied on the case of Purity Muthoni Kibiru v Selecta Kenya GMBH & Co. where the court cited with approval the case of Daphne Parry v Murray Alexander Carson (1963). 5. When the application came for inter-parties hearing on the 19th of September, 2023 Counsels for the applicant and respondents relied on their pleadings and reiterated the contents therein. Analysis and Determination. 6. I have carefully considered the application before me, the responses thereto and the rival submissions made by the respective counsels. I nd the sole issue for determination to be whether the appellant/ applicant has made up a case for being granted the orders sought. 7. Section 79G of the Civil Procedure Act provides: “ Every appeal from a Subordinate court to the High court shall be led within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order. Provided that an appeal may be admitted out of time if the appellant satises the court that he had a good and sucient cause for not ling the appeal in time”. 8. It is trite that extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party, at the discretion of the Court. That discretion however, must be exercised judiciously. In the case of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR the court stated “whenever an application for extension of time is before a court, the court ought to take into account several factors specically, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...” 9. In the case, the order before the court adopting the Surveyor’s report was issued on 26th April, 2023. The instant application led on 15th June, 2023. 82 days after the order was issued. I nd there was inordinate delay in ling in application. 10. The reason advanced by the applicant for the delay was that he lost touch with the advocate after he lost his phone. If the applicant was indeed aggrieved he would have visited the physical address of the advocate immediately he learnt of the order of court and given further instructions. In paragraph 3 of his supporting adavit, the applicant pointed out that he was not satised with the surveyor’s verdict pertaining the survey had and instructed his advocate to challenge the same. However, the advocate failed to do as instructed. His advocate submitted that there was a breakdown in communication alluding to the fact that he may not have received such instructions. I have perused the lower court le https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21166/eng@2023-10-17 2

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to establish what happened in court on the date the Surveyor’s report was adopted. Proceedings of 26th April, 2023 are recorded as follows; 26. 4.2023 Coram: Before Hon. C. A. Kutwa – SPM Court clerk – C. Kandie. Kiplagat for plainti. Barmao for defendant: Court: “The report dated 8.3.2023 is adopted and the matter marked as settled.” It is clear that on the date the report was adopted the applicant’s counsel was in court and consented to adoption of the report and to have the matter marked as settled. If these were not the instructions given to counsel, the applicant could have instructed his advocate afresh to have the consent order set aside. This he did not do so. 11. I nd the reason stated was not sucient and satisfactory to this court and therefore I am inclined to deny the extension to le the appeal out of time given the circumstances of this case. 12. I dismiss entirely the application dated 14th June 2023 with costs to the respondents. DATED, SIGNED AND DELIVERED VIRTUALLY AT ITEN THIS 17TH DAY OF OCTOBER, 2023. L. N. WAITHAKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21166/eng@2023-10-17 3

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