1.The Applicant moved this Court vide a Notice of Motion filed on the October 26, 2022 under Order 51 rule 1 of the Civil Procedure Rules , Section 79G of the Civil Procedure Act and Article 48 and 159 (2) (d) of the Constitution of Kenya and all enabling provisions of the law.
2.The Applicant sought the following orders; leave to file an appeal out of time; the annexed draft Petition of appeal be deemed as duly filed.
3.The application is premised on the grounds annexed and supported by the Affidavit of the Applicant deponed on the October 26, 2022 as follows; delay in lodging the appeal was occasioned by the delay in supply of proceedings which were furnished by the Court 42 days after the delivery of the Judgement, which delay he argues was not deliberate; that he has a good appeal with high chances of success; and that he has approached the Court diligently and expeditiously.
4.The application is opposed. Alice Wambui Kienye filed a Replying Affidavit deponed on the January 31, 2023 on her own behalf and that of the 2nd Respondent. That Judgement in the trial Court was delivered on the 30/8/2022 in favour of the Respondents wherein the suit was dismissed. That the Applicant failed to file an appeal within the 30 days stipulated in law. That no satisfactory explanation has been given by the Applicant to explain the delay of about 67 days post Judgment. That the delay is inordinate and the reasons advanced by the Applicant for the inordinate delay are unjustifiable, inexcusable and evidence of laxity on the part of the Applicant. That there is no requirement to wait for supply of typed proceedings in the lower Court to lodge the appeal. Moreover, the proceedings were only requested on the September 26, 2022, only 4 days to the deadline of lodging the appeal. Even after being furnished with the said proceedings on October 12, 2022 the Applicant took another 25 days to file this application. No reasons have been given for this delay, she averred.
5.Further the Respondents challenged the Certificate of Delay obtained by the Applicant dated the October 19, 2022 on the grounds that it is not signed hence its veracity is in doubt.
6.The Respondents urged the Court to dismiss the application.
7.Despite service the 3rd Respondent failed to file any response to the application.
8.On the May 23, 2023 parties elected to file written submissions which I have read and considered. The Court wishes to thank the counsels for each party for their useful highlights.
9.The key issue for determination is whether the Applicant is entitled to the orders of extension of time to file an appeal out of time.
11.The principles that guide the Court in the exercise of its mandate under the said Law have now been crystallized in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others  eKLR in which the applicable threshold was laid by the apex Court as follows; extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court; whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; whether there is reasonable reason for the delay; The delay should be explained to the satisfaction of the Court; whether there will be any prejudice suffered by the Respondent of the extension is granted; whether the application has been brought without undue delay; and whether uncertain cases, like election petition, public interests should be a consideration for extending time.
14.In determining the application the Court must of necessity balance the rights of the parties. In the case of M/s Portreitz Maternity v James Karanga Kabia, Civil Appeal No 63 of 1997 the Court stated that :
15.An appeal ought to be filed timeously and in accordance with the law otherwise it may cause undue prejudice to other parties who have a legitimate expectation that the litigation had come to an end when no appeal was filed within the stipulated period. The Court must balance the interests of the Applicants to be heard on appeal with those of the Respondent to enjoy the fruits of the Judgment.
16.It is trite that there is no mathematical way of calculating delay. Where the delay is found to be inordinate the same should be explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable. In the case of Monica Malel & Anor v R Et Al, Eldoret Civil Appl. No Nai 246 of 2008, the court stated thus:
17.In exercising discretion, it should not be supposed that the discretion is entirely unfettered as Lord Romilly MR explained in Haywood v Cope, (1858) 25 BEAV 140:
18.With the above in mind, I shall now consider the application.
19.The Judgement of the Court was rendered on the 30/8/2022. According to section 79G of the Civil Procedure Act, time for filing an appeal is 30 days that is by September 30, 2022. The Applicant failed to file the appeal within time. The application seeking to extend time to lodge an appeal has been brought 37 days later. The Court finds that there is delay. That said, the Court notes that despite the Applicant being represented by counsel, he still spent time looking for the typed proceedings, an act that is not a prerequisite in filing the appeal. The typed proceedings would be necessary for the filing of the Record of Appeal. Even then time taken in obtaining the typed proceedings is normally disallowed in calculating time for the delay in filing the Record of Appeal. That is why the certificate of appeal is provided by the registry to account for the delay. Counsel being an officer of the Court ought to have known better. For this reason I belief the Applicant has explained the cause of the delay although it was totally unnecessary. I have seen the letters requisitioning the said proceedings. Upon securing the said proceedings the application was filed 14 days later. I hasten to state that the delay has been explained to the satisfaction of the Court.
20.In the interest of justice and to afford the parties the opportunity to be heard on appeal, I allow the application on terms as follows.a.The Applicant to file and serve the Appeal within the next 15 days in default the orders shall lapse automatically.b.Throw away costs in the sum of Kshs 20,000/- shall be in favour of the 1st and 2nd Respondents and payable by the Applicant.Orders accordingly.