1.What is before me for determination is the plaintiff’s application dated April 24, 2023seeking the following orders:a.That the firm of Limo R.K & Co Advocates be granted leave to come on record for an on behalf of the 5th and 9th defendants in place of Arap Mitey & Co Advocates.b.That the honourable court be pleased to enlarge the time within which the plaintiff/applicant to file his Notice of Appeal against the judgment delivered onApril 9, 2019 and upon such time being enlarged, the applicant be allowed to file the appeal herein out of time.c.The costs of this application be provided for.
2.The application is premised on the grounds set out on the face of the application and theapplicant’s supportingaffidavit sworn on April 24, 2023. In essence the Applicant contends that she was unrepresented at the time judgment was delivered and that judgment was delivered in her absence. She thereafter instructed the firm of M/s Arap Mitey to file an appeal on her behalf but she did not receive any updates until April 20, 2023when she was served with a Notice to Show Cause. She thereupon instructed the firm of Limo R.K & Co Advocates and on perusal of the file they discovered that there was a vesting order and certificate of costs.
3.In opposing the application the respondent filed a replying affidavit sworn onJune 2, 2023in which he deponed that the Applicant is guildy of laches and that the suit property has already been transferred to the Respondent pursuant to a vesting order issued by the court.
4.The application was canvassed by way of written submissions and both parties filed their submissions which I have carefully considered.
5.The issues for determination arei.Whether the firm of Limo R.K & Co Advocates should be granted leave to come on record for the Applicant.ii.Whether the Applicant should be granted leave to file a Notice of Appeal out of time.
Analysis And Determination
6.The principles that guide the court in the exercise of its discretion to extend time for filing an appeal out of time were laid down by the Supreme Court in the case of Nicholas Kiptoo Arap Salat v IEBC & 7 others (2014) eKLR, as follows:
7.In the present case the Applicant the judgment was delivered way back in April 2019. The applicant claims that in 2020 she instructed the firm of Arap Mitey to file a Notice of Appeal but he did not do so and she only learnt of this fact in April, 2023. In an application for extension of time the applicant must explain the delay in filing the appeal to the satisfaction of the court.
9.The applicant has placed the blame on her former advocate who did not move the court soon after he was instructed to file the appeal. However, she does not explain why it took her 3 years to check on the progress of her case. In the case of Habo Agencies Limited v Wilfred Odhiambo Musingo ( 2015) eKLR the Court of Appeal observed as follows:
10.Applying by the above-mentioned principles in the Nick Salat Case to the instant case, I am not persuaded that the applicant has given a satisfactory explanation for the delay in filing the appeal on time. I am constrained to agree with counsel for the respondent that the applicant is guilty of laches.
11.Consequently, the application lacks merit and it is dismissed with costs to the respondent.