Mungai v Muituri (Environment and Land Case 2069 of 1999) [2025] KEELC 6342 (KLR)

5. Power to enlarge time (Order 50, rule 6) Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise. 6. The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & & Others [2014] eKLR outlined the following guidelines for consideration in an application for enlargement of time: “ (1) 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; (2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; (3) Whether the court should exercise discretion to extend, is a consideration to be made on a case to case basis; (4) Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the court; (5) Whether there will be any prejudice sufiered by the Respondent if the extension is granted; (6) Whether the application has been brought without undue delay" 7. The applicant attributes failure to file the appeal on the prolonged indisposition and untimely death of the counsel on record in the matter. In the instant case, the judgment was delivered on 1st July 2016 while this application was filed on 16th December 2024. That is a period of 7 years if the period covered by the Certificate of delay is discounted. 8. Inordinate delay is not defined in terms of days, months or years but is to be determined on a case by case basis taking into account the reasons given by a party for the delay. It is my view that one of the reasons for backlog in our courts is occasioned by failure to adhere to timelines which are set in the law or that are given by the courts. 9. The issue of delay in courts was taken seriously by Kenyans who in enacting the Constitution placed on courts the responsibility to ensure that justice is not delayed. It is thus incumbent on a party who has not adhered to statutory timelines to approach the court with full information on the cause of the delay. This has severally been held by our courts. In Kamiti v Kirugu & another (Civil Appeal (Application) E470 of 2021) [2021] KECA 158 (KLR) (19 November 2021) Justice Warsame while considering an application to extend time to file an appeal out of time stated as follows “ So long as it does not disentitle an applicant to the discretion of the Court being exercised in its favour, a genuine mistake on the part of counsel may be excused. However, the exercise of the court's discretion which is generally unfettered must be grounded on reason and cannot be exercised on a whim or sympathy. (See E C N G vs. F N N [2004] eKLR.) The Court in https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6342/eng@2025-05-12 2

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Habo Agencies Limited vs. Wilfred Odhiambo Musingo [2020] eKLR while distinguishing an excusable mistake from plain indolence and dilatoriness, observed that if this Court is to exercise its discretion in favour of a party, the party is obliged to place before it some material to justify exercise of discretion, otherwise the exercise of discretion will be perceived as capricious or whimsical.’’ 10. The applicant blames the unfortunate demise of his advocate on the failure to comply with the time lines. His afidavit is silent in very many material particulars such as when the advocate fell ill, when as the applicant he learned of the illness. He does not give the date of death or when he learned of it. I cannot help but surmise that the unfortunate passing of counsel is being blamed wholly for delay which is also attributable to the applicant who as the owner of the case should have been following up his case. It was the responsibility of the applicant to place all the facts before me that would have enabled me to exercise discretion in his favour. I find that this has not been done and in the circumstances the application is not merited and is dismissed with no orders as to costs. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 12TH DAY OF MAY 2025. JUDY OMANGE JUDGE In the presence of Court Assistant - Catherine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6342/eng@2025-05-12 3

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