1.The applicants Tobias Kichula and Mary Kichula have filed a Notice of Motion dated 9th February, 2022 seeking the following orders;1.The Record of Appeal filed in court on 29th November 2021 and served upon the Respondents on 02nd December 2021 be deemed as duly filed and served.2.The costs of this application be provided for.
2.The application is based on fourteen grounds on the face of it and is supported by an affidavit sworn by the 2nd applicant. She deposed that the impugned judgment was delivered on 15th October, 2019. Aggrieved, the applicants instructed M/s Kwanga Mboya & Company Advocates to proffer an appeal. The notice of appeal was timely filed on 22nd October, 2019.
3.Nonetheless, the applicants then sought a second opinion from M/s Bruce Odeny & Company Advocates who are their current advocates on record, advised them that since the suit emanated from an Originating Summons, it was prudent that leave is sought from the High Court before proceeding with the appeal. The said application for leave was made and was granted by Mrima, J on 28th May, 2020.
4.As a result, another notice of appeal was lodged on 9th June, 2020. Thereafter an application for certified proceedings was made on 18th August, 2020. The said proceedings were ready for collection on 24th February, 2021 and a certificate of delay of even date was issued by the Deputy Registrar of the High Court at Migori. The advocates proceeded to compile the record of appeal only to find that the proceedings were incomplete. They made several verbal enquires at the Registry in Mogori on the issue of the incomplete proceedings to no avail. The advocates then made a formal enquiry into the issue via a letter dated 11th May, 2021 to the Deputy Registrar. Unfortunately, no response has been given to date.
5.Due to the strict timelines provided for in the Court of Appeal Rules (Rules), the advocates made a decision to file the memorandum and record of appeal as they waited for directions from the Deputy Registrar of the High Court. The 2nd applicant contended that the delay was occasioned by circumstances beyond their control and urged this Court to allow this application.
7.In the exercise of my discretion, I shall be guided by the foregoing sound principles bearing in mind the peculiarity of the circumstances in this matter. Furthermore, this being an equitable relief, the conduct and candor of the applicants is relevant for consideration for he who seeks equity must do equity. See my ruling in Attorney General -vs- Kariuki Kingaru Murebu & 8 Others  eKLR.
8.From the record, the applicants did not exude complacency in seeking to file and prosecute this appeal. They sought a second opinion in order to ensure that they adhered to the Rules prior to appealing against the impugned judgment. It is clear that part of the delay was occasioned by the Registry at the High Court at Migori and the certificate of delay is proof enough of that. Once they discovered that the proceedings were incomplete, they made several trips to the Registry to follow up on the matter. When it was clear that the said Registry was not responding to their queries, Counsel decided to proactively lodge the memorandum and record of appeal and served it prior to seeking time extension. This to me is a good indicator that they were not indolent but rather were conscious of the timelines as set by the Rules. The applicants kept in motion in the right direction and I therefore cannot read any indolence on their part.
9.Furthermore, Rule 4 gives applicants the right, alas, one not much taken advantage of, to file the memorandum and record of appeal albeit out of time then seek for time extension after the fact. The said Rule specifically provides;
10.The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. (my emphasis)
12.I take the view that the foregoing cannot apply herein as our Rules, in Rule 4 specifically, clearly provide that an applicant can seek for time extension in respect of an act already performed. Thus, before this Court there is nothing untoward about first doing the act before seeking extension. On the contrary, it is a thing to be lauded.
13.It is my conviction that the applicants, by their conduct, have satisfactorily explained the cause of delay. They have demonstrated that they tried as much as possible to comply with the Rules even when faced with challenges. Bearing in mind the dictates of Section 3A of the Appellate Jurisdiction Act, I find that the delay was excusable as the applicants were not to blame for the delay. I would find effect to the overriding need for substantive justice to not only be done, but also be manifestly seen to be done. See Attorney General -vs- Law Society of Kenya & 5 Others  eKLR. I find that the applicants are deserving of this equitable relief.
14.Being of that mind, I allow the motion as prayed. The record of appeal filed on 29th November, 2021 and served on 2nd December, 2021 is accordingly deemed to have been filed and served within the prescribed time.
15.Costs of the motion shall be in the appeal.