1.The applicant, Paul Kagwa Mwaura (suing as the administrator of the estate of the late Robert Mwaura Kagondu Alias Mwaura Kagondu) has moved this court vide his notice of motion dated December 19, 2022 seeking extension of time to file and serve the notice and record of appeal from the judgment of the Environment and Land Court at Nairobi (Ogutu Mboya, J) dated July 14, 2022 in Nairobi ELC Case No 372 of 2008 out of time pursuant to rule 4 of the Court of Appeal Rules.
2.The applicant’s motion is supported by the applicant’s affidavit sworn on December 19, 2022 and is anchored on 7 grounds set out on the face of the motion, namely: that the impugned judgment was delivered on July 14, 2022; that he filed a notice of appeal on July 19, 2022; that, aggrieved by the decision of the ELC, his counsel filed an application for review, which was heard and dismissed; that he now wishes to appeal the judgment and decree of the trial court; that the respondents would not be prejudiced by the orders sought; that the intended appeal is arguable; and that it is only fair and just that the application be granted.
4.The respondents oppose the applicant’s motion vide the replying affidavit of the 2nd respondent, David Wanyoike Gachogu, sworn on February 9, 2022 on his own behalf and on behalf of the 1st and 3rd respondents. It is curious that the 1st respondent begins by deponing that he “approves the extension of time sought by the applicant in this matter,” but then proceeds to ask the court to dismiss the application. Going by the written submissions of counsel for the respondents dated February 9, 2023, the motion is opposed. Counsel asks me to rely on the grounds set out in the 2nd respondent’s replying affidavit and dismiss the application.
5.In summary, the respondents contend that the subject dispute has been in court for over 20 years; that the applicant has not indicated that he has applied for certified copies of the proceedings; and that he has not given any good reasons why he has delayed in filing the appeal.
6.Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to “… extend the time limited by these Rules, or by any decision of the court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act …,” on such terms as it thinks just.
7.The Court of Appeal in Leo Sila Mutiso v Helen Wangari Mwangi  2 EA p231 set out the principles to be applied in exercise of its discretion in determination of any application under rule 4. The court held that
8.The applicant’s prayer for extension of time to file an appeal is dependent on my findings on the following factors: whether the intended appeal is arguable with a possibility of success; the length of the delay, and whether such delay is inordinate; the reasons for the delay in filing the intended appeal; and whether the respondent would be unduly prejudiced by extension of time as sought.
9.With regard to the merit of the appeal, it is noteworthy that the applicant preferred to apply for review whereupon his application was dismissed. The outcome of his application for review remains unchallenged. In my considered view, he cannot be seen to turn around and prefer an appeal, and option he had previously abandoned in preference for review.
12.As is the case here, the applicant preferred to seek review of the impugned judgment and, therefore, cannot turn around and seek to go on appeal against the same decision on account of dismissal of his application for review. In view of the foregoing, the applicant’s notice of motion dated December 19, 2022 is incompetent and is hereby dismissed with costs to the respondents. It is so ordered.