1.The applicants herein moved the court by a Motion dated June 19, 2023, seeking the following orders in the main;“1.Spent.2.The applicant be granted leave to file and serve a fresh Notice of Appeal out of time and within seven days from the date of the order.3.Upon grant of order 2 above, the applicant’s Notice of Appeal annexed hereto be deemed as duly filed and served.4.The applicant be granted leave to file and serve the index and Record of Appeal dated January 25, 2023 out of time.”
2.I have contemplated the application, the grounds in support thereof and the law. This being a Rule 4 application, I shall be guided by the holding of this court in Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees  eKLR where the factors to consider, in the exercise of my discretion, which is free and unfettered, were stated as;
3.In the matter before me, it is deposed that, following delivery of the impugned judgment on October 12, 2022, the applicants instructed their counsel on record at the time, Saroni & Stevens Advocates, to file a notice of appeal and the same was done onOctober 21, 2022. Their counsel further wrote to the court registry requesting for certified copies of proceedings and the judgment on the same day. The applicants contend that despite their counsel making several follow ups to check whether certified proceedings were ready, no response came forth until December 15, 2022, when they were informed that they were ready. It is averred that on December 19, 2022, counsel applied for a certificate of delay. As they waited for it, they went ahead and filed the record of appeal together with an application seeking leave to file the appeal out of time.
4.The applicants claim that upon their counsel serving the respondents with the application for extension of time, it was brought to their attention that the notice of appeal, allegedly filed on October 21, 2022, had not been served upon the respondents. In the result the respondents filed an application dated February 25, 2023, seeking to strike out the notice of appeal, on grounds that it was not served upon the respondents within 7 days as stipulated by the rules of this court. On May 31, 2023, thiscourt allowed that application and struck out the notice of appeal.
5.The applicants now seek leave to file and serve, a fresh notice of appeal and the index and record of appeal dated January 25, 2023, out of time. On record is the affidavit of Minoo Kimeu, an advocate from the law firm of Saroni & Stevens Advocates, who had been assigned this matter on appeal. While regretting the omission that occurred, counsel claims that prior to the respondents’ lodgment of the application to strike out the notice of appeal, she was under the mistaken belief that the notice had been served upon them.
6.On counsel’s account, I am inclined to accept as plausible the explanation that the failure to serve the respondents with the notice of appeal was an honest mistake. Being of that mind I am amenable to exercise my discretion in favour of the applicants, a task made easier by the absence of opposition to the application.
7.In the result the motion dated June 19, 2023, is allowed. I accordingly extend time, to the end that the applicants shall lodge the notice of appeal within seven (7) days of the date of this order and the record of appeal within thirty (30) days of this order.
8.Costs of this motion shall be in the intended appeal.