(An Application under Rule 4 of the Court of Appeal Rules)
1.The applicant’s Notice of Motion dated 7th June, 2022 seeks the following two orders:
2.The Motion is supported by the affidavit of Dr. Jotham Okome Arwa, counsel for the applicants sworn on the same day, 7th June, 2022 in which he deponed that Odero, J. delivered a judgment on 14th April, 2022; that as the applicants were dissatisfied with thesaid judgment, a Notice of Appeal was prepared, although unfortunately filed 2 days outside the 14th days period. The delay was attributed to a miscalculation of the working days given the fact that there were many public holidays in the month of April and May 2022.
3.The respondent resisted the motion vide a replying affidavit dated 12th July, 2022 in which he deponed that the applicants did not exercise due diligence in observing the timelines; that the delay is inordinate; that the parties have been in court for a period of 5 years and that the filing of the Notice of Appeal was an afterthought.
4.In the applicants’ submissions dated 10th July, 2022, it was submitted that the filing of the Notice of Appeal two days after the expiry of 14 days was on account of miscalculation due to the many public holidays in the month of April and May 2022. The holidays included the 4-day Easter holiday, State funeral for the late Hon. Mwai Kibaki and Labour day.
5.Reliance was placed on this Court’s decision of County Government of Mombasa vs. Kooba Kenya Ltd  eKLR in support of the proposition that a delay of two days cannot be said to be inordinate. Further, that the Notice of Appeal was served upon the respondent upon its filing and the instant motion was filed immediately after the mistake was noted.
6.In the respondent’s submissions dated 12th July, 2022, it was contended that the applicants’ application seeking enlargement of time was filed on 7th June, 2022 and was in response to the respondent’s application dated 2nd June, 2022 seeking to strike out the Notice of Appeal; that the applicant failed to exercise due diligence in computing timelines for the filing of the Notice of appeal; that the applicants’ conduct is inexcusable; that the respondent is likely to suffer great prejudice given that the proceedings herein have taken over 5 years and finally, that the applicants have no arguable appeal.
7.The application before me is made pursuant to Rule 4 of this Court’s Rules which provide as follows:
8.The respondent submits that the prerequisites for granting relief under Rule 4 of this Court’s Rules have not been met. He submitted that:
10.Admittedly, the impugned judgment was delivered on 14th April, 2022. The applicants filed a Notice of Appeal dated 28th April, 2022 on 6th May, 2022. At the time, the respondent had filed an application dated 2nd June, 2022 seeking to strike out the Notice of Appeal.
11.In my view, the applicants have explained that the delay of 2 days was on account of miscalculation of days given that the months of April and May, 2022 had so many public holidays. In my view, this is an excusable mistake. True, the applicants may have been “woken up” by the respondent’s application to strike out their Notice of Appeal and this demonstrates the fact that the applicants had all along been under the impression that their Notice of Appeal had been lodged within the 14 days period.
12.I find the mistake to be excusable and since the delay of 2 days cannot be said to be inordinate, I allow the motion of 7th June, 2022. I make no order as to costs.