1.Although the heading of the application before me indicates that it is seeks stay of execution of the judgement and decree of the Employment and Labour Relations Court dated 11th December 2020, the body of the application indicates that it seeks extension of time to file a notice of appeal from the same judgment. Of the grounds set out on the face of the application in support of the prayer for extension of time, the only relevant ground states that:In trying to decipher the circumstances that are said to have been beyond the applicant or its advocates, I turned to the 15- paragraph supporting affidavit sworn on 19th October 2021 by Marie Atieno Luseno, the managing director of the applicant. The entire affidavit is a lament of why and how the impugned judgment is wrong and says absolutely nothing on why the applicant did not file the notice of appeal within the prescribed time.
2.The only place one finds a semblance of an explanation is in the submissions, where it is casually stated:
3.It is not readily apparent who the “I”in the above paragraph is, because the submissions are signed corporately by Kasamani & Associates Advocates. The explanation for delay should be in an affidavit, that is to say, a solemn statement made under oath. It cannot be in submissions by an unidentified person purporting to take responsibility for inadvertence. The rest of the submissions dwell on the principles that guide the court, which are not in doubt.
4.The respondent opposed the application vide a replying affidavit sworn on 12th November 2021 by Rose Ouma Omamo who states that the application is based on irrelevances which do not explain the reason for the delay in filing the notice of appeal. In its written submissions, the respondent point out that the intended appeal is against a default judgment which the applicant unsuccessfully challenged by way of review. It is the respondent’s view that having failed in the application for review, the applicant has no automatic right of appeal against the same judgment. The respondent adds that in any event, the applicant has not given any explanation for delay.
5.I have considered this application. It is trite that the discretion of the Court in extending time is wide and unfettered, although it must be exercised judiciously rather than whimsically. In Fakir Mohamed v. Joseph Mugambi & 2 Others, CA No. Nai. 332 of 2004 the approach of the Court in the exercise of discretion to extend time was explained as follows:
6.Turning to the application before me, the judgment that the applicant seeks to appeal was delivered on 11th December 2020. The application for extension of time to file a notice was made on 19th October 2021, after the lapse of a period of 10 months. In my view, that is inordinate delay, granted that the rule 75(2)of the Court of Appeal Rules requires the notice of appeal to be filed within 14 days from the date of the decision challenged. Again, it must be emphasised that drawing and filing a notice of appeal is not a complex exercise. The notice of appeal is normally a one-page document.
7.Be that as it may, delay alone will not disentitle the applicant to the remedy of extension of time, so long as it is explained. In Abdulkadir Athman Salim Elkindy v Dpp & Another, Civil Application No. 198 of 2017, it was stated:On this score, I am afraid there is no explanation. In Rajesh Rughani v. Fifty Investment Ltd & Another  eKLR, the Court reiterated that if the advocate is simply guilty of inaction, that is not excusable mistake which the Court may consider with some sympathy. To make matters worse in this case, the advocate whose inadvertence is relied upon is neither disclosed, nor has he sworn an affidavit to explain the delay. All that is presented are bare and fleeting statements in submissions, which are not depositions.
8.In the event, I am satisfied that the inordinate delay is not explained. I find no merit in this application and the same is dismissed with costs to the respondent. It is so ordered.
DATED AT NAIROBI THIS 18TH DAY OF MARCH 2022.K. M’INOTI............................................JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR