1.In the notice of motion dated May 9, 2022, which is expressed to be brought under Rule 4 of the Court of Appeal Rules, the applicant,Dorcas Karambu Sigilai, seeks orders in the main:a.That this Court be pleased to extend the time limited for filing the memorandum of appeal and that the memorandum of appeal filed herein be deemed as duly filed; andb.That costs be in the cause.Stephen Kithinji Mugambi is the respondent herein.
2.The application is supported by an affidavit sworn on even date by the applicant, to which two letters dated December 6, 2021 and January 31, 2022 bespeaking proceedings and a certificate of delay dated March 10, 2022 were attached, as well as the impugned judgment. The applicant explained that the delay in lodging the appeal within time was occasioned by the delay in obtaining the certified copies of the proceedings which were requested for on December 6, 2021 but the same were availed on April 13, 2022. The applicant further deponed that her advocates have since obtained the typed proceedings and a certificate of delay to enable her file the appeal. Further, that the appeal is merited and has a high chance of success.
3.The respondent opposed the application and filed a replying affidavit. It is the respondent’s case that the instant application is brought in bad faith and is an abuse of the court process; that the applicant has not explained the delay and has not availed evidence that she paid the requisite deposit fees for the proceedings; that the applicant failed to take action until January 31, 2022; and that the Court has no way of ascertaining that the intended appeal is arguable with high chances of success as she has not attached any memorandum of appeal.
4.Both the applicant and the respondent filed their written submissions rehashing the contents of the notice of motion and affidavits.
5.The substantive issue for my determination is that of extension of time to file a memorandum of appeal. My discretion as a single Judge to extend time under Rule 4 is unfettered and must be exercised judiciously. The factors that govern the exercise of the discretion to extend time under the said Rule were well stated in the case of Leo Sila Mutiso v Hellen Wangari Mwangi  2 EA 231 as being the lengthof the delay; the reason for the delay; the chances of the appeal succeeding if the application is granted; and the degree of prejudice to the respondent if the application is granted. Similar factors were also stated by the Supreme Court of Kenya in Nicholas Kiptoo Arap Salat vs IEBC  eKLR.
6.Rule 82 (now Rule 84) makes provision for institution of appeals and reads:
7.In this case, the impugned judgment was delivered on November 24, 2021. The notice of appeal was lodged on December 6, 2021 being 14 days from the date of the delivery of judgment. The certified copies of proceedings were supplied to the applicant on March 9, 2022. From the record, counsel for the applicant obtained the certificate of delay on April 13, 2022. The instant application was filed on May 9, 2022.
8.The reasons proffered for delay is that there was a delay in obtaining the typed proceedings. I find that in the circumstances the delay is not inordinate and has been satisfactorily explained.
12.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 ELC and is desirous of appealing against the said judgment out of time. In the case of Richard Nchapi Leiyagu vs IEBC & 2 Others, Civil Appeal No 18 of 2013, this Court expressed itself as follows:
13.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 May 9, 2022 is allowed as prayed.
14.Accordingly, I make the following orders:a.That leave is hereby granted to the applicant to file and serve the record of appeal and memorandum of appeal within thirty (30) days from the date hereof;b.Costs of this application to abide the outcome of the intended appeal.