Principles to consider when determining an application for extension of time to lodge an appeal
The instant application sought among others the extension of time for lodging an appeal against the judgment and orders of the Court of Appeal delivered on July 29, 2022 in Mombasa Court of Appeal Civil Appeal No 135 of 2018 as consolidated with Civil Appeal No 139 of 2018 and that the petition of appeal and record of appeal, both dated September 13, 2022, filed as Supreme Court Petition No E031 of 2022, subsequent to the notice of appeal dated August 15, 2022 be deemed to have been filed in time.
The applicant averred that the delay in filing the notice of appeal was occasioned by the applicants’ counsel’s involvement in offering legal services with regard to election preparedness, election management, and election results transmission; that the counsel’s mistaken computation of time arose from the erroneous view that July had thirty (30) days as opposed to thirty-one (31) days; and that the apparent mistake only occurred to counsel once it was pointed out to him in the replying affidavit of the 1st respondent. The applicant submitted that the delay in filing the notice of appeal was due to the applicants’ counsel’s mistaken belief that the deadline for filing the notice of appeal was August 15, 2022 instead of August 12, 2022.
- What were the principles to be considered when determining an application for extension of time to lodge an appeal?
1. According to rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretion to extend time limited by the rules or by any of its decisions. Furthermore, rule 36(1) of the Rules stipulated that a person who intended to appeal to the court should file a notice of appeal within fourteen (14) days from the date of judgment or ruling which was the subject of the appeal.
2. The principles to be considered when determining an application for extension of time were as follows;
- extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
- a party seeking extension of time had the burden of laying a basis to the satisfaction of the court;
- whether the court should exercise the discretion to extend time was a consideration to be made on a case-to-case basis;
- whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
- whether there would be any prejudice suffered by the respondents if the extension was granted;
- whether the application had been brought without undue delay; and
- whether in certain cases, like election petitions, public interest should be a consideration for extending time.
3. From the record, the judgment of the Court of Appeal was delivered on July 29, 2022. Therefore, the applicants ought to have lodged the notice of appeal by August 12, 2022. The applicants had admitted that indeed they filed the notice three (3) days after the expiry of the stipulated time. The applicants had not satisfactorily explained the reasons for that delay and as a consequence, the application for extension of time was disallowed. There was no lawful or proper petition before the court and the preliminary objections could not also attract the court’s attention.
- Salat, Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 7 others (Petition 1 of 2013;  KEHC 399 (KLR)) — Explained
- Constitution of Kenya, 2010 — Article 162(2) — Interpreted
- Employment And Labour Relations Court Act (Act No 20 of 2011) — Section 12
- Supreme Court Rules, 2020 (Gazette Notice No 9586) — Rule 15, 31 — Interpreted
Mr. Kongere for Applicants
Mr. Kashindi for 1st Respondent
Mr. Gakuo for 2nd respondent
Ms. Murage for 5th - 51 Respondents