Whether the Application herein has been made and/or mounted without inordinate delay and if not; whether the delay has been accounted for or otherwise.
37.Before venturing to address and/or ventilate the issue beforehand, it is important to state and point out at the onset that the instant suit was filed and/or mounted way back in the year 2007 and hence at this juncture, the suit beforehand has graced the corridors of the court for a duration in excess of 16 years. In this regard, there is no gainsaying that the suit has taken a considerable duration of time prior to and before same could be brought to hearing.
38.Whereas various reasons may be responsible for the duration and or length of time that the suit has taken before being brought to hearing, it is imperative that the exercise of discretion one way or the other as pertains to any interlocutory Application, the one beforehand not excerpted, be considered vis a vis the extent of delay.
39.Having pointed out the foregoing, it is now appropriate to consider the pertinent facts relating to whether the current Application has been made timeously and with due promptitude. In this regard, it is not lost on the court that the 3rd Defendant/Applicant herein initially filed a Statement of Defense and Counterclaim on the 7th April 2008; and thereafter same was amended on the 16th June 2009.
40.Subsequently, the instant suit was listed for hearing and same has substantially been heard . For good measure, it is imperative to underscore and reiterate that the Plaintiff’s case was heard and closed on the 30th January 2023; and thereafter the 1st and 2nd Defendants case was taken and closed on even date.
41.Notably, the Applicant herein thereafter sought for and obtained an adjournment with a view to commencing her case. In this respect, the Applicant’s case was ultimately commenced on the 22nd May 2023.
42.Be that as it may, during the entire duration when the Plaintiff’s case was being heard and thereafter the case for the 1st and 2nd Defendants, the Applicant herein was privy to and/or aware of all the facts and circumstances which are now being alluded to at the foot of the current Application.
43.Consequently and in view of the foregoing, the question that does arise is why was the current application not filed and/or mounted either prior to the commencement of the hearing or at any appropriate time, to enable same to be dealt with and/or interrogated by the court and with a view to facilitate timely disposal.
44.To my mind, the Application beforehand has been mounted after lapse of inordinate and unreasonable amount of time. Nevertheless, it is important to point out that whenever an Applicant approaches the court for purposes of exercise of equitable discretion and more particularly where there is a scintilla of delay, like the one beforehand, then it behooves the Applicant to place before the Honorable court some cogent, plausible and reasonable explanation to explain why there has been that delay.
45.Most importantly, where an Applicant is able to account for and/or explain the delay attendant to the filing of the particular application, then a court of law and of equity is disposed to look at the application favorably. For good measure, it is worth remembering that Equity aids the vigilant and not the indolent.
46.Moving forward, I am therefore called upon to interrogate whether the Applicant herein has supplied and/or availed any reason for the delay to file and/or mount the application beforehand timeously. In this respect, the contents of Paragraphs 3 and 4 of the Supporting affidavit by the Applicant are pertinent.
47.Consequently, it is imperative to reproduce same verbatim;Paragraph 3That I subsequently instructed the firm of M/s Musyoka Murambi & Associates to come on record in place of M/s Havi & Company Advocates who had replaced the firm of M/s Majanja Luseno & Company Advocates.Paragraph 4That I am advised by my advocates currently on record, which advise I verily believe to be true that the said documents does not bring out with clarity the issue of creation of constructive trust.
48.From the foregoing reproduction, what comes out clear is that the advise to amend the pleadings herein arises out of information by the Applicant’s current advocates, after reviewing the amended statement of defense and counterclaim on record. In this respect, the question that does arise is why the review which is now anchoring the advise, was not taken earlier, insofar as the current advocates for the Applicant have indeed been on record for the Applicant right from the commencement of the hearing of the proceedings and in particular, since the 30th of November 2021.
49.For coherence, the contents of the supporting affidavit, which ought to have accounted for the reason for the delay has indeed not availed any such reasons. Consequently and in the absence of any such cogent and/or plausible reasons, the only inference to be drawn is that the delay in filing the application was informed by inaction, negligence or want of diligence, on the part of the Applicant and by extension her counsel on record.
50.However, it is important to underscore that the Equitable discretion of the court can only be invoked upon dissemination and/or disclosure of cogent and plausible reasons and where no such reasons are granted, the court must be reluctant to exercise equitable discretion. Simply put, the exercise of Discretion of the Court can only be unlocked by and upon full dissemination of all the facts attendant to and underpinning the delay.
51.In this respect, it is imperative to take cognizance of the ratio decidendi in the case of Kamondo v Maina (Civil Application E110 of 2022)  KECA 947 (KLR) (28 July 2023) (Ruling), where the court stated and held thus;
52.Additionally, the importance of accounting for and/or availing reasons for any delay attendant to the filing of an application that seeks to invoke the discretion of the court was also underscored by the Court of Appeal in the case of Habo Agencies Limited versus Wilfred Odhiambo Musingo  eKLR, where the court stated thus;
53.Before departing from the subject issue, it is also important to recall, reiterate and emphasize the succinct exposition of the law and holding in the case of Andrew Kariuki Njoroge Vs Paul John Kimani, Civil Application, Nai E049 of 2022 (2022) KCEA, 1188 (klr) (20th October 2022), where it was observed as hereunder:-12.In order to exercise its discretion whether or not to grant condonation, the court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. An unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success. Condonation cannot be had for the mere asking.An applicant is required to make out a case entitling him to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.13.Equally important is that an application for condonation must be filed without delay and/or as soon as an applicant becomes aware of the need to do so. Thus, where the applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the court may take a dim view, absent a proper and satisfactory explanation for the further delays.
54.Arising from the foregoing, my answer to issue number one is two-fold. Firstly, the current Application has been mounted with inordinate and unreasonable delay. Secondly, the inordinate delay under reference has neither been accounted for nor explained, whatsoever.