[2025] KECA 634 (KLR)

Odhiambo v Mulamba & another (Civil Application E149 of 2024) [2025] KECA 634 (KLR) (4 April 2025) (Ruling)

Neutral citation: [2025] KECA 634 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application E149 of 2024

LK Kimaru, JA

April 4, 2025

Between

Isaiah Omondi Odhiambo

Applicant

and

Jotham Godfrey Mualamba

1st Respondent

Milton Humphrey A Akello

2nd Respondent

(Being an application for leave for extension of time to appeal out of time from the Ruling of the High Court of Kenya at Busia (W. Musyoka,J) dated 22nd March, 2024inH.C. Succ. Cause No. 295 of 2012 Succession Cause 295 of 2012 )

Ruling

1. The applicant, Isaiah Omondi Odhiambo was aggrieved by the Ruling rendered on 2nd March, 2024 by the High Court sitting at Busia (W. Musyoka, J). The said decision of the Court declined to grant the applicant’s application which, inter alia, had sought to have the grant of letters of administration intestate that had been issued to the respondents revoked. Immediately after the Ruling was rendered, the applicant timeously lodged the notice of appeal on 2nd April, 2024 after the leave to appeal was granted by the High court. The applicant did on 3rd April, 2024 write to the High court, Busia requesting to be availed certified typed copies of the Ruling and proceedings for appeal purposes. The applicant did not, however,copy the letter bespeaking of proceedings to the respondents. He cannot therefore benefit from the proviso of Rule 84(1) and (2) of the Court of Appeal Rules, 2022.

2. The applicant moved this Court by notice of motion made pursuant to Rules 4,42, and 43 (1)(3)(a) of the Court of Appeal Rules seeking to be granted leave to file the memorandum and record of appeal out of time. The applicant attributed the delay in filing the said pleadings to the fact that he was not able to obtain certified typed copies of the proceedings from the trial court in time. The applicant explained that the delay was not deliberate or intentional as he had diligently pursued the typing and the certification of the said proceedings. The application is supported by the annexed affidavit of the applicant in which he narrates the efforts he made to secure the said certified typed copies of proceedings and Ruling from the Court.

3. The application is opposed. The 2nd respondent filed a replying affidavit in opposition to the application. The respondents were not convinced by the reason given by the applicant for the delay in lodging the memorandum and the record of appeal. The respondent pointed out that no good reason was advanced by the applicant why he took four (4) months before he filed the present application before this Court. In their view, this delay was inordinate and inexcusable. The applicant therefore urged the Court to dismiss the application.

4. Both the applicant and respondents filed written submissions in support of their respective opposing positions. This Court has carefully considered the same. Rule 4 of the Court of Appeal Rules,2022 grants this Court unfettered discretion to extend time for any steps to be taken that is time bound by the Rules. The discretion must, however, be exercised judiciously and not capriciously or on a whim.

5. Both the applicant and the respondents cited the seminal case of Leo Sila Mutiso vHellen Wangari Mwangi [1999] 2EA 23 where this Court held thus:“It is now well settled that the decision whether or not to extend the time appealing is essentially discretionary. It is also well settled that in general, the matters which this Court take into account in deciding whether to grant an extension of time are, first the length of delay, second the reason for the delay, thirdly, (possible) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted.”

6. In the present application, the applicant gave the reason for the delay in lodging the memorandum and the record of appeal to the delay in obtaining the certified typed copies of the proceedings and Ruling from the trial court. The applicant explained that he wrote several reminders to the court seeking to know whether the proceedings had been typed and certified by the trial court as requested. The respondents were not convinced by the diligence of the applicant in the pursuit of the said proceedings. This Court, on assessment of the reason advanced by the applicant, is persuaded that indeed the applicant is deserving of the exercise of discretion by this Court.

7. Although the applicant failed to copy the letter bespeaking the proceedings to the respondents, it is clear to this Court that the applicant pursued, with diligence, the typing and the certification of the proceedings and the Ruling of the trial court. The several letters that the applicant wrote to the trial court in pursuit of the said typed and certified copies of the proceedings and Ruling is sufficient evidence of his desire to have his day before this Court. The applicant did not just sit and wait for things to happen, he took action. The delay has therefore been explained to the satisfaction of this Court.

8. In the premises therefor, the application has merit. It is hereby allowed. The applicant is granted leave to file and serve the memorandum and record of appeal. The same shall be filed and served within twenty-one (21) days of today’s date. The costs that abide the outcome of the appeal.

DATED AND DELIVERED AT KISUMU THIS 4TH DAY OF APRIL, 2025. L. KIMARUJUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.