Kimutai v Lerayan

wrote a letter to court requesting for certied copies of judgment and typed proceedings in this matter for purposes of appeal, however to date the same has not been typed. 4. According to the Applicant, it was until 23rd May, 2024 when she visited her advocate’s chambers and told them that the post oce box she was using belonged to a nearby school which was closed during the intervening period hence lack of communication. 5. The Applicant further deponed that when she became aware of the judgment, the time for ling an Appeal had already lapsed and that being dissatised with the judgment, she wished to appeal against the said judgment in its entirety out of time. She stated that the intended appeal raises substantial issues, which ought to be heard and determined on merit as the period of delay in ling the Appeal was not intentional. 6. The Plainti/Respondent led a Replying Adavit dated 9th July, 2024 where he deponed that the application is an abuse of court process as the Applicant was fully aware of the contents of the judgment herein but decided not to treat the same with the seriousness that it deserves. He further deponed that the Applicant is guilty of laches and if the instant application is allowed, he stands to suer substantial loss incapable of being compensated by way of damages and urged the court to dismiss the application with costs. Defendant/applicant’s Submissions 7. Counsel for the Defendant /Applicant led submissions dated 16th July, 2024 and identied the issue for determination as whether court can admit a suit out of time. 8. Counsel submitted that the applicant is aware that time has lapsed and it is due to this circumstance that she is seeking for leave to lodge an appeal out of time. Counsel relied on the cases Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (2015) eKLR and Martha Wangari Karua v Independent Electoral and Boundaries Commission Civil Appeal No 1 of 2017. 9. Counsel further relied on Article 50 and 159 of the Constitution of Kenya and submitted that any short comings of the Applicant is curable and the court is obliged to hear and determine each case on merit and no litigant should be driven from the seat of justice without being heard. 10. Ms. Kiprop also submitted that mistake of an advocate should not bar the Applicant from his or her constitutional right to appeal and cited the case of Hudson Kihanda v Romagego Kenya Limited (20100 eKLR. Counsel urged the court to allow the application as prayed. 11. On 23rd September, 2024 when the matter came up in court for mention, counsel for the Plainti/ Respondent informed the court that he will rely on the Replying Adavit. Analysis And Determination 12. The issue that arises for determination is whether this Honourable court should grant the Defendant/ Applicant leave to lodge an appeal out of time. 13. In the case of First American Bank of Kenya Ltd v Gulab P Shah & 2 others Nairobi (Milimani) HCCC No 2255 of 2000 [2002] 1 EA 65 the court set out the factors to be considered in deciding whether or not to grant an application for extension of time to lodge an appeal out of time as follows: i. The explanation if any for the delay; https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13586/eng@2024-10-16 2

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14. ii. The merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; iii. Whether or not the respondent can adequately be compensated in costs for any prejudice that he may suer as a result of a favorable exercise of discretion in favor of the applicant. Further in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar [2020] eKLR the court outlined factors to consider when dealing with an application for leave to appeal out of time as follows: i. the length of the delay ii. the reason for the delay iii. the chances of the appeal succeeding if the application is granted iv. the degree of prejudice to the respondent if the application is granted 15. The judgment the applicant seeks to appeal against was delivered on 21st March 2024 and the application was led on 3rd June 2024. An applicant in an application for extension of time to le an appeal out of time must adhere to the principles set out above. An applicant must satisfactorily explain the delay in not ling the appeal within the stipulated period. 16. The Applicant stated that she became aware of the judgment when time stipulated to le an appeal had lapsed. She also stated that here advocates were not present in court when the same was delivered hence the delay. She further explained that there was lack of communication as the Post Oce Box Number that she was using was for a neighboring school, which had been closed during the intervening period. She further stated that the lawyer had written to her two letters and later requested for the typed proceedings for purposes of appeal. 17. The applicant also stated that she is aggrieved by the judgment and her appeal has substantial issues that should be tried on merit and as such arguable and has high chances of succeeding. It was further her case that there will be no prejudice caused to the respondent as the delay was not intentional. 18. In the case of Mbukoni Services Limited & another v Mutinda Reuben Nzili & 2 others [2021] eKLR, the Learned Judge cited with approval the decision in Daphne Parry v Murray Alexander Carson [1963] EA 546 where it was held that: “ Though the provision for extension of time requiring “sucient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona des, is imputed to the Appellant, its interpretation must be in accordance with judicial principles. If the Appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the Appeal should be dismissed as time-barred even at the risk of injustice and hardship to the Appellant.” 19. On the issue of length of delay, reason for delay and prejudice to the Respondent, the Defendant/ Applicant stated that judgment was delivered on 21st March 2024 and the application led on 3rd June 2024 which is 2 months delay. In computation of time to establish whether there was delay or not, time is of essence when certain activities are supposed to be done or happen at appointed times. In certain circumstances, a delay of one or two days might be found to be inordinate and a period of a https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13586/eng@2024-10-16 3

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year found not to be depending on circumstances of the case like was held in the case of Mwangi S. Kimenyi v Attorney General & Another that: “ There is no precise measure of what amounts to inordinate delay. Inordinate delay will dier from case to case depending on the circumstances of each case; the subject matter of case; the nature of the case; the explanations given for the delay; and so on and so forth.” 20. In the case of County Executive of Kisumu v County Government of Kisumu & others (2017) eKLR where the Supreme Court held that: “ Each case has to be determined on its own merit and all relevant circumstances considered. It is worth reiterating that in considering whether or not to extend time the whole period of delay should be stated and explained to the satisfaction of the court.” 21. It should be noted that leave to le an Appeal out of time is not of right but an equitable remedy, which is discretionary. The court must be satised that the Applicant has shown sucient cause why the discretion should be in his/her favour which she has explained above. 22. I have considered the application together with the submissions by counsel and nd that the application has merit and is therefore allowed as prayed. Applicant to le the appeal within 14 days failure to which the order lapses. Each party to bear their own costs. DATED, SIGNED AND DELIVERED AT NAKURU THIS 16TH DAY OF OCTOBER 2024. M. A. ODENY JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13586/eng@2024-10-16 4

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