Boro v Registered Trustee of Lady Muriel Jex Blake Memorial Garden & another

3. I have considered the application, the applicant’s supporting adavit, the replying adavit of Susan Joanna Church, the Chairperson of the 1st respondent, and the rival submissions. Undoubtedly, the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time. However, that discretion must be exercised judicially. The principles that guide the Court in that regard were stated by Waki, JA in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR as follows: “ The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the eect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance - are all relevant but not exhaustive factors: See Mutiso v Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi v Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta v Murika M’Ethare & Attorney General Civil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38.” 4. In the same vein, the Supreme Court of Kenya more recently in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, Supreme Court Application No. 16 of 2014[2014] eKLR stated that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; that delay should be explained to the satisfaction of the court; whether there will be prejudice suered by the respondents if the extension is granted; and whether the application is brought without undue delay. Public interest should also be a consideration. 5. With those principles in mind, the applicant states that he was unable to pursue the matter and to follow up with his advocates on the issue of appeal on account of his medical condition and being bedridden for “quite a lengthy time”. In that regard he exhibited to his adavit a medical report dated 4th April 2024 by a Dr. Gitonga in which reference is made to his initial consultation at Mathari National Teaching & Referral Hospital on 4th August 2020, where following assessment, he was admitted for treatment and stabilization and then discharged to continue treatment as an outpatient. 6. It is not clear from either his adavit or the medical report for how long the applicant was admitted in hospital. However, the medical enumerates his “numerous out-patient and follow up clinic visits” between 4th August 2020 and 23rd April 2024 (at least eleven visits are captured over that period) and indicates that the applicant was scheduled for a further consultation visit on 29th October 2024. The medical report concludes: “ Currently, he is under management with psychotherapeutic modalities and his progress is stable and commendable…is currently stable and can resume his vocation.” 7. From the date of delivery of the ELC judgment 18th June 2020 to the time the present application was led in June 2024 is a period of approximately four years as correctly stated in the replying adavit of Susan Joanna Church who also deposes that the matter has been in court for over 15 years. That is undoubtedly a long time. Even as I empathise with the respondent, in the unique circumstances of this case as captured in the medical report exhibited by the applicant, he has in my view laid a basis for the exercise of the Court’s discretion in his favour as the explanation for the inaction over the four years on account of his mental state is in my view plausible. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1932/eng@2024-12-20 2

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8. Consequently, I grant prayers 2 and 3 of the application dated 4th June 2024. The applicant has thirty (30) days from the date of delivery of this ruling to le and serve his memorandum and record of appeal failing which the Notice of Appeal dated 1st July 2020 and lodged on 2nd July 2020 shall be deemed to have been withdrawn without further ado. 9. Costs of the application shall abide the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. S. GATEMBU KAIRU, FCIArb ..................................... 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/2024/1932/eng@2024-12-20 3

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