Mr Nganga concedes that after the judgment of the court on 29^th April, 2008, the firm then acting for the applicant did file a the Notice of Appeal within the stipulated period but failed to apply for proceedings within the stipulated time. After his firm was engaged on 26^th September, 2009, Mr Ng’ang’a submitted that the time for filing the record, namely the 60 days had already expired and his firm then concentrated on seeking an order for stay hence the delay because the application for stay was heard on 25^th May, 2010 and ruling given on 24^th June, 2010, when the Court of Appeal gave an order of stay preserving the status quo.

Mr Nganga also submitted that his firm applied for proceedings on 1^st July, 2010, which were certified ad collected on 25^th November, 2010, and that his firm subsequently prepared a record of appeal and that the applicant had good chances of success in the intended appeal. Finally, Mr Nganga submitted that no prejudice is likely to be suffered by the respondent because he does not stay in disputed land and although he concedes that there was delay, it was largely occasioned by the previous firm. He further invited the Court to note the effect of its own ruling on 24^th June, 2010, is to effect anticipate the filing of an appeal.

He further contended that although the applicants counsel was appointed on 26^th September, 2009, he did not apply for proceedings for almost 10 months, and this delay has not been explained.

The factors which govern rule 4 applications were well set out in the case of MUTISO VS MWANGI, 1997 KLR 630 (CAK), where it was held:

If the above issues were the only ones which merit a determination, my instructions would have been to reject the application to extend time for failure to adhere to the principles enunciated in the Mutiso case. However, due to this Court’s ruling of 24^th June, 2010, which ruling anticipates an appeal, I consider that the court’s ruling by a three judge bench should be respected and could not have been rendered in vain. The effect of not allowing this application would be to negate a full Court ruling. I note that the ruling was made in a stay application brought before this application for extension of time was heard. 

For this reason and pursuant to the letter and spirit of the overriding objection, I would allow the application for extension of time and order that the applicant files and serves a record of appeal within fourteen (14) days.

In the circumstances, I award the costs to the respondent in any event.

It is so ordered.