Union of Kenya Civil Servants v Nyamato & 2 others

not instruct the advocate to appeal against the decision and that further the applicant had to have an internal meeting to deliberate on the way forward before giving the advocate instructions and that when the instructions were nally given, the time within which to lodge a Notice of Appeal had already lapsed. 4. There was no response on part of the respondents. 5. The applicant in its submissions basically reiterated the contents of the supporting adavit and submitted that the application had been brought timeously and that the delay herein was not inordinate and that further the same had been explained and that the intended appeal was not in any way frivolous. 6. The 2nd respondent also lled submissions on his behalf and the proposed 4th to 6th defendants which are not in any way relevant to the application that is currently before this Court. 7. I have carefully considered the motion, the grounds thereof, the supporting adavit, the rival submission by the parties, the cited authorities and the law. 8. The principles upon which this Court exercises its discretion under Rule 4 are rmly settled. The Court has wide and unfettered discretion in deciding whether to extend time or decline the same. However, in exercising its discretion the Court should do so judiciously. See Fakir Mohamed vs. Joseph Mugambi & 2 Others C.A. No. NAI. 332 of 2004 where the Court laid out some of the considerations to be taken into account by the Court in deciding applications of these nature as follows; the length of the delay, the causes of the delay, the possibility of the appeal succeeding and prejudice to be occasioned to the parties. In the instant case, the impugned ruling was delivered on 11th November 2021, whereas the instant motion is dated 5th January 2022. There has therefore been a delay of about 55 days which in my opinion and from the circumstances of this case is not inordinate. 9. Regarding reasons for the delay, it was contended that the delay herein was occasioned by internal wrangles on account of a fall out after the applicant’s elections were held, as a former ocial of the applicant failed to communicate to the applicant the contents of the ruling and that the applicant could not instruct the advocate to appeal against the decision and that further the applicant had to have an internal meeting to deliberate on the way forward before giving the advocate instructions and that when the instructions were nally given, the time within which to lodge a Notice of Appeal had already lapsed. 10. It was further contended that between the period of 21st December 2021 and 13th January 2022, the Court was on vacation and thus the application could not have been led. 11. From the circumstances of this this case and due to the aforestated reasons I am satised that the delay herein has been explained to the satisfaction of this Court and I nd the reasons given for the delay to be tenable. 12. With regard to the possibility of the appeal succeeding, I have looked at the annexed draft Memorandum of Appeal and I am satised that the applicant has an arguable appeal worthy of consideration by the Court. Of course I am alive to the fact that I cannot say more regarding this issue lest I embarrass the bench that will be eventually seized of the appeal. 13. As regards prejudice, it has been demonstrated to the satisfaction of this Court, that the applicant will stand to suer prejudice if the instant motion is not allowed. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1060/eng@2022-10-07 2

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14. Given the circumstances, I nd that the applicant has demonstrated and satised the existence of the principles for consideration in the exercise of my unfettered discretion pursuant to Rule 4 of this Court to extend time to le an appeal out of time. 15. Accordingly, the applicant’s motion dated 5th January 2022 is meritorious and the same is hereby allowed in terms of prayers 2 and 3. 16. The applicant will le and serve the Notice and Record of Appeal within 60 days from the date of this ruling failure to which these orders shall stand vacated. 17. The costs of this motion shall abide the outcome of the intended appeal. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. F. SICHALE .......................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1060/eng@2022-10-07 3

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