1.Before me is an application dated 13th July, 2021 filed by Pauline Katampoi (the applicant), seeking extension of time within which to file and serve the Record of Appeal out of time from the judgment of the High Court at Nairobi (A. Ongeri, J.) in Succession Cause No. 881 of 2016 delivered on 18th October, 2019. Peter Makario Nyambura & Jackline Wanjiru Ngechu are the 1st & 2nd respondents respectively.
2.The application is premised inter alia on the grounds: that there was a delay on the part of the trial court in supplying certified court proceedings to the applicant; that the certificate of delay was issued by the Deputy Registrar on 24th June, 2021; that by the time the applicant obtained the certificate of delay, the time stipulated in the rules for filing the record of appeal had lapsed; that the delay in filing the record of appeal was not deliberate but was occasioned by the unavailability of the typed proceedings and certificate of delay which constrained the applicant to file the intended appeal within time. The application is supported by the affidavit of Steven Nzaku, the applicant’s counsel, sworn on 13th July, 2021 in which he reiterated the grounds on the face of the application.
3.There was no replying affidavit or written submissions filed by the respondents when I considered the application.Submissions
4.The application was canvassed by way of written submissions. The applicant’s counsel, Ms. Nzaku & Nzaku Advocates filed written submissions and submitted that the applicant has been diligent in pursuing the filing of the record of appeal and the delay in filing the record of appeal was not deliberate; that the reason for the delay has been satisfactorily explained; and that a Court should not shut out a litigant who acts with diligence. The applicant relied on the case of Leo Sila Mutiso -versus-Rose Hellen Wangari Mwangi -Civil Application No. Nai 255 of 1997(unreported).
5.Counsel further submitted that they have an arguable appeal as demonstrated by the applicant’s draft memorandum of appeal; and that no prejudice or undue delay shall be visited upon the respondents if the orders sought are granted. Counsel urged the Court to allow the application.Determination
6.I have considered the application, the grounds in support thereof, submissions filed, authorities cited and the law. The issue for determination is whether the application is deserving of the orders sought. Rule 82 of the Court of Appeal Rules provides that a record and memorandum of appeal should be filed within 60 days of the lodging of the notice of appeal.
7.The discretion that I am called to exercise in the determination of this application is provided under Rule 4 of the Court of Appeal Rules which provides as follows:
8.Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving an objective decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi  2 EA 231 which is the locus classicus,laid down the parameters as follows:
11.There is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet  eKLR as was cited by the applicant, this Court stated:
12.Rule 82 of the Court of Appeal Rules provides:-
13.Accordingly, a record of appeal should be filed within 60 days of the lodging of the notice of appeal. However, where a party files and serves an application for typed proceedings, the time taken to assemble the proceedings is exempted in the computation of the 60 days. Thereafter, the Deputy Registrar of the relevant court issues a Certificate of Delay for verification of the period to be excluded by the Court and the parties.
14.In the instant application, the notice of appeal was lodged on 23rd October, 2019 together with a letter bespeaking proceedings pursuant to the Court’s direction on 12th February, 2020. The Certificate of Delay was signed, sealed and released to the applicant’s advocates together with the proceedings on 24th June, 2021. The instant application was filed on 13th July, 2021. I therefore find that the period of delay in filing the record of appeal is not inordinate and is well explained.
15.The applicants contend that they have an arguable appeal on the ground inter alia: who the rightful beneficiaries and dependents of the Estate of Ephantus Mirie Mbagu (Deceased) are pursuant to the Law of Succession Act. Without going into the merits of the appeal as this will be determined by the full bench which will be seized of this appeal, I am satisfied that the intended appeal is arguable. In Muchugi Kiragu v James Muchugi Kiragu & another Civil Application No. NAI. 356 of 1996, this Court had the following to say as regards this Court’s discretion under Rule 4:
16.On the degree of prejudice to the respondent, I am called upon to balance the competing interests of the parties, that is, the injustice to the applicant, in denying him an extension, against the prejudice to the respondent in granting an extension. The applicant is aggrieved by the judgment of the High Court and is desirous of appealing against the said judgment out of time.
17.In the case of Richard Nchapi Leiyagu vs IEBC & 2 Others, Civil Appeal No. 18 of 2013, this Court expressed itself as follows:
18.From the circumstances of the application before me, the applicant has demonstrated the existence of the parameters set out in Leo Sila Mutiso (supra). The upshot is that the notice of motion dated 13th July, 2021 is allowed.
19.Accordingly, I make the following orders:
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2021.J. MOHAMMED...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR