1.Upon perusing the notice of motion application dated June 24, 2022 and filed physically and electronically and on July 20, 2022 and June 27, 2022 respectively pursuant to articles 159(2)(d) of the Constitution of Kenya, sections 1A, 1B and 3A of the Civil Procedure Act, rules 15(2) and 38(1)(a) of the Supreme Court Rules, 2020 and all other enabling provisions of the law, we note that the applicants seek the following orders:1.That this application be certified urgent and service thereof be dispensed with in the first instance.2.That this honourable court be pleased to enlarge time within which the petitioners/applicants should file a supplementary record of appeal being duly sealed notice of appeal dated September 28, 2021 and certified copy of Order dated September 23, 2021 in terms of the draft annexed hereto;
2.Upon perusing the grounds on the face of the application; the supporting affidavit sworn on June 24, 2022 by Evans Muriuki Muthuuri; and submissions dated July 19, 2022, it is the applicants’ argument that the record of appeal dated October 28, 2021 filed on even date arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No 352 of 2019 dated September 23, 2021is incomplete as the duly sealed notice of appeal and order appealed from have not been filed. It is their contention that on September 28, 2021 an application was made for the certified copy of the order arising from the said judgment; however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules 2010 which they did by forwarding the draft order to the respondents on September 29, 2021 for approval. In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the Notice of Appeal by the Court of Appeal on January 26, 2022;
3.Upon considering the applicants’ contention that the certified order dated September 3, 2021 was issued following further follow up efforts resulting in the filing of the present application. They affirm that their application is merited and should be allowed as the delay was caused by factors beyond their control as held by this court in Geo Chem Middle East v Kenya Bureau of Standards SC Petition (Application) No 47 of 2017  eKLR; and
4.Upon perusing the written submissions dated August 1, 2022 and filed on August 4, 2022 on behalf of the respondents and the replying affidavit by Silas Oloo Mc’Opiyo, acting Chief Executive Officer (CEO) of the 2nd respondent, sworn on August 1, 2022 and filed on August 4, 2022 wherein he depones that the applicants having learnt of the ruling on April 20, 2022, ought to have physically followed up with the court registry within reasonable time rather than waiting for two months and following the same via email. It is their other argument that the applicants are not eager to have the said appeal determined as they are dragging their feet in filing the record of appeal considering no reasonable explanation has been rendered. Hence, the delay is evidently inordinate and offends the principle that there should be an end to litigation as held by the Court of Appeal in the case of Aviation Cargo Support Limited v St Mark Freight Services Limited  eKLR; and, they allege that they would suffer irreparable loss if the orders sought herein are granted
5.Noting that the court under rule 15(2) of the Supreme Court Rules 2020 has unfettered discretionary powers to extend the time limited by the rules or by any of its decisions; and any person intending to appeal to the court is required by rule 31(1) of the Supreme Court Rules, 2020 to file the notice of appeal within fourteen days from the date of the decision intended to be challenged; and
6.Noting further from the record that after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021; and that the applicant’s follow up efforts preceding the issuance of the order are not disputed by the respondents; and that delays caused by court’s administrative processes to the detriment of a party cannot be visited upon such a party because such a delay is beyond a party’s reach,
8.We opine that in spite of the respondents’ argument that the applicants ought to have followed up physically at the registry, we are satisfied that the application meets the above threshold as the delay of two months in this matter is not inordinate as the delay is sufficiently explained, and it was not occasioned by the applicant but by the court. We find that this explanation is reasonable and we see no prejudice to be occasioned to the respondents. Accordingly, we conclude that the application is meritorious and is to be allowed. As for costs, we note that the parties are still engaged in litigation before the court, it is only prudent that we defer the costs to follow the ultimate outcome of the appeal.
9.Consequently, we make the following orders:i.The notice of motion dated June 24, 2022 and filed electronically and physically on June 27, 2022 and July 20, 2022 respectively be and is hereby allowed.ii.The costs of this application to abide the outcome of the appeal.It is so ordered.