[2022] KEHC 10080 (KLR)

Ndithya v Total Kenya Limited (Miscellaneous Civil Application E218 of 2021) [2022] KEHC 10080 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10080 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application E218 of 2021

GV Odunga, J

July 14, 2022

Between

Emmanuel Ndithya

Applicant

and

Total Kenya Limited

Respondent

Ruling

1. By a Motion on Notice dated 22nd November, 2021, the applicant herein seeks orders that the court grants him leave to appeal out of time and that his draft memorandum of appeal annexed be deemed as duly filed. He also seeks an order for provision for costs.

2. According to the applicant, the judgement sought to be appealed from was delivered on 7th April, 2021. According to the applicant, the trial court declined to award him special damages. As a result, he instructed his advocates to apply for review of the said judgement which application was filed on 15th June, 2021 whose ruling was delivered on 18th August, 2021. On 23rd August, 2021, he applied for certified copies of the proceedings and the ruling in order to ascertain the true position of the matter which proceedings were received by his advocates on or about 17th November, 2021.

3. It was deposed that since the Respondent has itself filed an appeal being Hcca No. E050 of 2021, it would be in the interest of justice if both appeals were heard and determined together.

4. It was deposed that the delay in bringing the application was regretted but the Court was urged not to lock out the applicant from pursuing his intended appeal due to procedural technicalities in the interest of justice.

5. The application was however opposed by the Respondent based on the following grounds:1. The Application is misconceived.2. The Applicant has admitted that he filed an application seeking to review the Judgment dated 7th April 2021 on the issue of special damages and the same was dismissed on 18th August 2021. 3.The Applicant having opted to apply for review of the Judgment cannot seek to appeal from the same Judgment after the application for review was dismissed as this would be in breach of Section 80 of the Civil Procedure Act and Order 45 (2) of the Civil Procedure Rules.4. The Applicant could either have exercised the option to seek review of the Judgment or file an appeal from the Judgment and not both.5. The Applicant having opted to file an application for review against the Judgment dated 7th April 2021, the Applicant if dissatisfied with the decision of the trial court on review can only appeal the decision dismissing the Application for review and not the Judgment.6. The Applicant wants to have a second bite of the cherry by gambling with the law and judicial process.7. Even if an appeal from the Judgment was an option after the application for review was dismissed on 18th August 2021, there has been inordinate in filing the instant application dated 22nd November 2021. 8.The Application is an abuse of the process of the Court and the same must fail should be dismissed with costs.

6. On behalf of the Applicant it was submitted that this Court is clothed with both the constitutional and legal mandate to grant the prayers sought by allowing the filing of the appeal out of time to ensure that the ends of justice are met. According to the applicant, judicial discretion gives court flexibility to provide a definition according to the specifics of a case, for ends of justice and to prevent the abuse of the court process. In this regard he relied on the case of Rufus Murithi Nyaga vs. Juliet Wanja Ireri (2018) eKLR where Muchemi, J while endorsing the dicta in Nicholas Kiptoo Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others[2014] eKLR. Reference was also made to Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi CA Application No. Nairobi 25 of 1997.

7. According to the applicant, his intended appeal is based on the fact that the trial court declined to award special damages despite being pleaded and proved on the grounds that the same was not proved in court by production of receipts. It was the applicant’s submission that he instructed his advocates to file an application for review of the said judgment which application was filed on 15/6/2021 and that the trial court issued a ruling on the said application on 18. 8.2021 declining to allow for review stating that the record was clear on the documents produced. That, on 23. 8.2021 the applicant requested for certified proceedings and ruling to ascertain the true position on the production of the said receipts for special damages which proceedings were made available to the applicant on or about 17. 11. 2021 by which time the period for filing an appeal had elapsed.

8. The applicant submitted that at all times from the date of the court’s judgment, he has been constantly pursuing the matter and at no point in time did he slack on time. The applicant contended that the said matter proceeded virtually and the applicant’s counsel on pursuing for review instead of appealing at the time is because they were certain that the court record had an error on production of the documents as Plaintiff Exhibit No. 8.

9. The applicant relied on Itute Ngui & Anor vs. Isumail Mwakavi Mwendwa Civil Application No. Nai. 166 of 1997, where Omolo, JA held that whereas advocate’s bona fide error is a special reason for extension of time within which to appeal, the nature and quality of the mistake must be considered. Accordingly, whereas inadvertence may be a ground for extension of time, the nature and quality of the inadvertence must be disclosed for consideration by the Court.

10. It was further submitted that the applicant has an arguable appeal which raises serious points of law, which will be rendered nugatory if the appeal is not admitted out of time. The Court was invited to peruse the attached draft memorandum of appeal and was urged to appreciate that the same raises several poignant points of law and fact that deserve attention and determination by this Court. It was asserted that on whether the appeal is arguable, the applicant need not establish a multiplicity of grounds and it is sufficient if a single bona fide arguable ground of appeal is raised as was held in the case of Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. Further, an arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. See Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.

11. In the applicant’s submission, no prejudice will be occasioned to the respondent herein if the application is allowed as they have also filed an appeal on the award of the court hence it would serve justice that both appeals are heard at the same time for the court to make a determination on both the respondent’s appeal and the applicant’s intended appeal.

12. The Court was urged to find that in line with the provisions of Article 159(2)(d) of the Constitution as read with Sections 1A and 1B of the Civil Procedure Act, the Courts ought to be more liberal in allowing breaches of procedural technicalities in order to determine the substantive issues at hand. In the present case, it was submitted that the applicant filed the current application eight (8) days after the lapse of the statutory period of Seven (7) days. Reliance was placed on Wasike vs. Khisia (2004) 1 KLR 197 and Joseph Njau vs. Benson Mwai (2013) eKLR and the court was urged to find it necessary to determine the substantive issues and grounds and allow the Applicant leave to file its appeal out of time as prayed.

13. On behalf of the Respondent it was submitted that the Applicant having opted to apply for review of the Judgment cannot seek to appeal from the same Judgment after the application for review was dismissed as this would be in breach of Section 80 of the Civil Procedure Act and Order 45(2) of the Civil Procedure Rules. According to the Respondent, the Applicant could either have exercised the option to seek review of the Judgment or file an appeal from the Judgment and not both. In this regard reliance was placed onSerephen Nyasani Menge vs. Rispah Onsase [2018] eKLR and Gerald Kithu Muchanje v Catherine Muthoni Ngare & Another [2020] eKLR.

14. In the Respondent’s view, the applicantt wants to have a second bite of the cherry by gambling with the law and judicial process.

15. It was however submitted that even assuming an appeal from the Judgment was an option after the application for review was dismissed on 18th August 2021, there has been inordinate in filing the instant application dated 22nd November 2021, which delay has not been explained. The reason of having failed to file the appeal within time because the applicant had applied for a review is not a plausible reason, the filing of the notice of appeal was not dependent on the outcome of the review.

16. The Application, according to the Respondent, is an abuse of the process of the Court and the same should be dismissed with costs.

Determination 17. I have considered the submissions filed in support of the parties’ respective positions.

18. Before dealing with the merits of the application, I wish to deal with the issue whether the filing of this application amounts to an abuse of the process of the Court. It is admitted that the applicant herein, after the judgement, applied for the review of the same vide an application dated 7th April 2021 on the issue of special damages and the same was dismissed on 18th August 2021. It is contended that the Applicant having opted to apply for review of the Judgment cannot seek to appeal from the same Judgment after the application for review was dismissed as this would be in breach of Section 80 of the Civil Procedure Act and Order 45 (2) of the Civil Procedure Rules. To the Respondent, the Applicant could either have exercised the option to seek review of the Judgment or file an appeal from the Judgment and not both. It was contended that the Applicant having opted to file an application for review against the Judgment dated 7th April 2021, the Applicant if dissatisfied with the decision of the trial court on review can only appeal the decision dismissing the Application for review and not the Judgment. By filing this application, it was contended that the Applicant wants to have a second bite of the cherry by gambling with the law and judicial process.

19. To determine this issue one needs to interrogate the provisions of Section 80 of the Civil Procedure Act and Order 45 (2) of the Civil Procedure Rules.

20. Section 80 of the said Act provides as follows:Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

21. Order 45 rule 1(b) of the said Rules, provides as follows:(1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

22. The foregoing provisions are based on section 80 of the Civil Procedure Act Cap 21 Laws of Kenya which states as follows:“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

23. It is clear from the foregoing that the review remedy is only available to a party who, though has a right to challenge the decision in question by an appeal, is not appealing or to whom there is no right of appeal. In other words, a person cannot exercise both the right of appeal and review at the same time. See Orero vs. Seko [1984] KLR 238.

24. Who, then is a party who is appealing? There are two contradictory decisions from the Court of Appeal. In Kisya Investments Ltd vs. Attorney General and Another Civil Appeal No. 31 of 1995 the Court held that a party who has filed a notice of appeal cannot apply for review but if application for review is filed first, the party is not prevented from filing appeal subsequently even if a review is pending. However, in Yani Haryanto vs. E. D. & F. Man. (Sugar) Limited Civil Appeal No. 122 of 1992 the Court of Appeal was of the following view:“The facility of review under Order 44 of the Civil Procedure Rules is available to a person who is aggrieved by an order or decree which is appealable but from which no appeal has been preferred or from which no appeal is allowed, and who from the discovery of new and important matter or evidence or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review. A notice of appeal apart from manifesting a desire to appeal, appears to have a two-fold purpose; one of the purposes is apparent from the rules that follow up to and including rule 79. The other purpose is to enable the High Court to entertain an application for stay of execution before the appeal is filed...What rule 4(1) of Order 41 of the Civil Procedure Rules prescribes for is an exception to the rule relating to the actual filing of the appeal which is rule 81(1) of the Court of Appeal Rules. The exception is the deeming of the appeal to be filed for the purposes of rule 4 of Order 41 only on the giving of the notice of appeal. Therefore despite the lodging of a notice of appeal the court has jurisdiction to entertain an application for review... An appeal is not instituted in the Court of Appeal until the record of appeal is lodged in its registry, fees paid and security lodged as provided in rule 58 and the inclusion of a memorandum of appeal”.

25. In light of the two decisions emanating from the same Court of Appeal, this Court is entitled to adopt either of the two decisions. In my view the Haryanto Case reflects the true legal position. A Notice of Appeal is not an appeal but just a formal notification of an intended appeal. In fact, under Rule 77(1) of the Court of Appeal Rules it is provided that an intended appellant shall, before or within seven days after lodging notice of appeal, serve copies thereof on all persons directly affected by the appeal. Clearly, a strict reading of this rule contemplates a situation where a Notice of Appeal may even be served before the same is lodged. Where that happens I cannot see how such a Notice which has not even been lodged can by any stretch of imagination be equated to an appeal. Accordingly, the mere fact that a party has given a Notice of intention to appeal does not amount to an appeal for the purposes of review. See also Multichoice (Kenya) Ltd vs. Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR.

26. However, the same Court in The Chairman Board of Governors Highway Secondary School vs. William Mmosi Moi Civil Application No. 277 of 2005 had this to say:“The Board took an active part in giving instructions to the advocate on the various matters the advocate was pursuing before the superior court. In particular the Board gave instructions that an application be filed for review of the ruling and it is the same ruling against which instructions had already been given for filing an appeal to the Court of Appeal. In those circumstances the options available to the Board were exhausted when the application for review was determined by the superior court and it is doubtful whether the intended appeal would be valid even if it was filed. An aggrieved party under Order 44 of the Civil Procedure Rules can apply for the review of a decree or order either where “no appeal has been preferred” or where “no appeal is allowed”. An appeal is allowed on orders made under Order 9A rule 2 Civil procedure Rules, as in this case, and indeed the Board filed a notice of appeal under rule 74 of the rules to challenge the orders. A notice of appeal however is only a formal notification of an intention to appeal and it cannot be said that the aggrieved party has “preferred” an appeal at that stage and was thus precluded from exercising the option of review. The issue as to whether a respondent having filed a notice of appeal, which had not been withdrawn, was answered in the affirmative by the Court of Appeal in Yani Haryanto vs. E. D. & F. Man (Sugar) Ltd Civil Appeal No. 122 of 1992 (UR)... The Board was at liberty to pursue the option of review of the orders despite the filing of a notice of appeal to challenge the same orders. However upon the exercise of that option and pursuit therefrom until its conclusion, there would be no further jurisdiction exercisable by an appellate court over the same orders of the court. That was the end of the matter and the notice of appeal was rendered purposeless. Both options cannot be pursued concurrently or one after the other”.

27. Whereas under Order 45 rule 1, a person aggrieved by a decision whether an appeal is allowed or not but who is not appealing, is at liberty to apply for review of the decision, that provision, in my respectful view, is not a carte blanche for abuse of the process of the Court. In the case of Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 Kimaru, J dealing with the issue of abuse of the process of the Court stated as follows:“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it”.

28. Whereas there is no express bar in the rules to a party who has attempted to review a decision from subsequently appealing against the same, it must be noted that the Rules are subject to the provisions of the Civil Procedure Act under which section 3A empowers the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. To allow a party who has unsuccessfully attempted to review a decision, to attack the very decision the subject of review on appeal would in my view open several fronts in litigation since the possibility of the applicant also appealing against the decision refusing the review cannot be ruled out. The provisions of Order 45 rule 1 are meant to assist genuine litigants who intends to review a decision to do so and not to assist parties who set out to turn judicial process into a roulette. In my considered view the wording of the provisions of Order 45 rule 1 is meant to take into account the fact that the said provisions are not restricted to parties to a suit since it talks of “any person considering himself aggrieved”. An aggrieved party may not find the avenue of an appeal feasible and may apply for review without locking out those parties who may wish to pursue an appeal from doing so. But to apply for review with the intention of opening up fresh fronts for litigation on appeal against the order emanating from review and an appeal against the order sought to be reviewed amounts, in my view, to an abuse of the process of the Court. It would also contravene the overriding objective as provided under sections 1A and 1B of the Civil Procedure Act whose aim is the disposal of cases expeditiously and avoidance of multiplicity of proceedings. To find otherwise would amount to giving the Court’s seal of approval to persons who wish to play lottery with judicial process.

29. I associate myself with the decision in Serephen Nyasani Menge vs. Rispah Onsase [2018] eKLR where the Court stated as follows:“Order 45 rule 1(a) and (b) in addition to setting out the conditions that an applicant in an application for review must satisfy in order to get the application granted, reiterates the proviso of Section 80(a) and (b) which in my view makes it plainly clear that the options of a review and an appeal are not simultaneously available to an aggrieved party. Once a party has opted for a review the option of an appeal cannot at the same time be available to the party. Subrule (2) of Order 45 of the Civil Procedure Rules further makes the matter clearer…In my view a proper reading of Section 80 of the Act and Order 45 Rules 1 and 2 makes it abundantly clear that a party cannot apply for review and appeal from the same decree or order. In the present case, the applicant exhausted the process of review up to appeal and now wishes to go back to the same order she sought review of and failed and to try her luck with an appeal. The applicant wants to have a second bite of the cherry. She cannot be permitted to do so. Her instant application constitutes an abuse of the process of the court and the same must surely fail. The applicant had her day in court when she chose to seek a review of the order that she now wishes to appeal against. Litigation somehow must come to an end and for the applicant, the end came when she applied for review and appealed the decision made on the review application. Litigation cannot be conducted on the basis of trial and error. That is why there are provisions of the law and the procedure to be adhered to. The applicant invoked the provisions of the law and the procedure thereto and the court rendered itself on the basis of the law and the evidence.”

30. Similarly, in Gerald Kithu Muchanje v Catherine Muthoni Ngare & another [2020] eKLR the Court of Appeal held that:“The applicant was aggrieved by the judgment of the trial court. Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original Judgment. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error. An appeal could only lie on the outcome of the application for review. In the case of Martha Wambui v Irene Wanjiru Mwangi & Another (2015) eKLR, the court stated that “From the above provisions of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure rules, it is clear that one cannot exercise the right of appeal and at the same time apply for review of the same Judgment/decree or order. One must elect either to file an appeal or to apply for a review… It therefore follows that the appellant herein had an unimpeded right to either appeal against the ruling of 13/6/2014 or apply to have it reviewed. And having exercised the right to a review, she lost the right of appeal against the same order …” See also the case of Multichoice (K) Ltd v Wananchi Group (K) Ltd & 2 Others (2020) eKLR. This is exactly what happened here. Contrary therefore to the submissions by the applicant, the law on the issue is purely settled.”

31. Accordingly, I associate myself with the said decisions that both options cannot be pursued concurrently or one after the other.

32. In this case the Appellant having sought to review the Judgment dated 7th April 2021, cannot now purport to appeal against the ruling delivered on 18th August, 2021 dismissing the application for review.

33. Even if I were to find otherwise, Section 79G of the Civil Procedure Act provides that:Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

34. It is clear therefore that the decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion and just like any other exercise of discretion. This being an exercise of judicial discretion, like any other judicial discretion must on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The Court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. One of those judicial principles expressly provided for in the above provision is that the Applicants must satisfy the Court that he has a good cause for doing so, since as was held in Feroz Begum Qureshi and Another vs. Maganbhai Patel and Others [1964] EA 633, there is no difference between the words “sufficient cause” and “good cause”. It was therefore held in Daphne Parry vs. Murray Alexander Carson [1963] EA 546 that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona fides, is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant.

35. As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant. This was the position reiterated in Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR, where the Court of Appeal set out the principles undergirding an Application for leave to file an appeal out of as follows:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...”

36. Similarly, in Leo Sila Mutiso vs. Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231 the Court of Appeal set out the factors to be considered in deciding whether or not to grant such an application and these are first, the length of the delay; secondly the reason for the explanation if any for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted i.e. the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; and fourthly, the degree of prejudice to the respondent if the application is granted and whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

37. However, as was held in Kenya Commercial Bank Limited vs. Nicholas Ombija[2009] eKLR:“An “arguable” appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court.”

38. That was the position in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR where the court held that:“...On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised...An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous...”

39. It was therefore appreciated by Muchemi, J in the case of Rufus Murithi Nyaga vs. Juliet Wanja Ireri (2018) eKLR while endorsing the dicta in Nicholas Kiptoo Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, that: -“……… It is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. “We derive the following as the underlying principles that a court should consider in exercising such discretion: - Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; Where there is a reasonable [cause] for the delay, the same should be expressed to the satisfaction of the court; Whether there would be any prejudice suffered by the respondent, if extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petition, public interest should be a consideration for extending time.”

40. However, in the case of Thuita Mwangi vs. Kenya Airways Ltd [2003] eKLR, the Court explained that follows:“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive. Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”

41. I also associate myself with the decision of the Supreme Court in Civil Application No. 3 of 2016 - County Executive of Kisumu –vs- County Government of Kisumu & 7 Others at page 5 where the said Court said:-“… 23) It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court. Further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salatcase to which all the parties herein have relied upon. The court delineated the following as:-“the underlying principles that a court should consider in exercise of such discretion:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.”

42. In this case the Applicant explained that the trial court having declined to award special damages he instructed his advocates to file an application for review of the said judgment which application was filed on 15th June, 2021. The ruling in respect of the aid application was delivered on 18th August, 2021 by which the application for review was dismissed. According to him, on 23rd August, 2021 he requested for certified proceedings and ruling to ascertain the true position on the production of the said receipts for special damages which proceedings were made available to him on or about 17th November, 2021 by which time the period for filing an appeal had elapsed. The present application is dated 22nd November, 2021.

43. The question that this court has to determine is whether the reason for the delay is excusable. In this case, if I understand the applicant correctly, the delay was caused by the delay in furnishing him with the proceedings and ruling in respect of the application for review. However, the applicant, in this appeal seeks to appeal against the decision which was the subject of the delay. In my view, he did not require the proceedings undertaken after the judgement to appeal against the judgement itself. While he might have required those proceedings to appeal against the decision dismissing the application for review, he need not have sought the subsequent proceedings in respect of an appeal against the main judgement.

44. Accordingly, I am not satisfied that the applicant has justified his reason for the delay, from 18th August, 2021 when the application for review was dismissed and 22nd November, 2021 which is the date of his application.

45. Consequently, the application dated 22nd November, 2021 fails and is dismissed with costs.

46. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 14TH DAY OF JULY, 2022. G V ODUNGAJUDGEDelivered in the presence of:Mr Musya for Miss Mwanzia for the ApplicantCA Susan