RULING
1. The Applicant filed a Notice of Motion brought 11th October 2025 under Order 42 Rules 1, 2, 4 and 6, Order 51 Rule 1 of Civil Procedure Rules, 2010, Section 1A, 1B, 63(e), 79G and 79 of the Civil Procedure Act and all other enabling provisions of the Law. He sought the following ORDERS that:
1. …Spent.
2. THAT this Honourable Court be pleased to grant leave to the Applicant/Appellant to file a Memorandum of Appeal out of time.
3. THAT this Honourable Court be pleased to grant an order for stay of execution of the judgment and the consequential order issued on the 20th day of November 2019 in Homa Bay SPM ELC Case No. 18 of 2016 pending the hearing and determination of this application.
4. The costs of the Application be provided for.
2. The Application was based on the grounds that the delay in filing the Memorandum of Appeal was occasioned inadvertently by the parties herein had sought to reconcile (sic) the matter by way of alternative dispute resolution (ADR) mechanism thereby making it impossible to appeal against the decision. The appellant was not satisfied by the judgment of the Hon. T. M. Olando delivered on 20th November 2019 in Homer Bay SPM ELC No. 18 of 2016 in favor of the respondent. He wished to appeal against the Ruling but the time within which to file an appeal had since lapsed. He therefore sought leave of the court to file the appeal out of time.
3. Additionally, during the process of seeking to reconcile the matter (sic) by ADR, his brother fell ill and he had to tend to him. This caused him to incur financial expenses hence his inability to appeal in time.
4. Further, that in the meantime he filed an application which had to be determined first before he could move to the Appeal Court, which application an Appeal had since been preferred against. The instant application had been brought in extreme good faith and without unreasonable delay and had high chances of success. Also, the intended appeal was highly meritorious with high chances of success. Allowing the instant application would not occasion injustice to the respondent. The interests of justice required the grant of the prayers sought.
5. The application was supported by the Affidavit sworn by the Applicant Dick Otieno Okumu. He repeated the contents of grounds of the application save that to them he added that the trial court had dismissed his suit for want of proof by finding that he had not proved that the respondent had trespassed onto the land. He annexed a copy of the Judgment and marked it the DOO -1. He also annexed to the affidavit a copy of draft Memorandum of Appeal which he said wished to file.
6. The application was opposed through a replying affidavit sworn by JOHN OORO MINENE who deposed that the Applicant filed a land case against the him and it was dismissed for want of proof of trespass onto the suit land, namely, Kanyamwa/K/K/Kakaeta/1443. The parcel was in the name of the Applicant. Further, after the suit was dismissed on 20th November 2019 the Applicant neither at any time ever sought any other alternative dispute resolution nor did he file any appeal to challenge the judgment. After the judgment, the applicant never interfered with the occupation of the land by respondent until early this year after the latter had ploughed and planted his crops (maize) that he (the applicant) sold a portion of the suit land where the respondent occupied and fenced the same without the consent of the respondent. He denied him opportunity to weed and tend the crops or maize.
7. Further, upon the respondent realizing that he could not access to his crops, he applied to court to be allowed to access and tend for his crops. He tried to remove the illegally erected fence and the administrator of the court and to sign the transfer forms in place of the applicant who had declined, refused and or underrated the directive of the court which was granted.
8. The applicant then moved this court in the instant application after realizing that he had contempt court orders and there was an application in the original case seeking for his arrest for court contempt, which had high chances of success against him. He now sought to hid behind this Court to defeat the cause of justice.
9. Further, that if the Applicant was satisfied with the judgment, there was a delay of six years before preferring an appealing against the judgment. This court should not allow itself to be used by people bent not adhering to orders. The time of appeal had already been overtaken by events and the application was a waste of the precious time of the court. The court ought not entertain such people bent on frustrating others by trying to (ab)use its process.
10. The Applicant had never had any sick brother. He had not indicated to the court what had become of his purported sick brother. The Applicant could not be trusted.
11. There was an application against the applicant that was pending determination which was for contempt of court by him having severally defied court orders since the delivery of the judgment on 20th November 2019. The application was brought in bad faith and was an abuse of court process. It was intended to delay the course of justice hence it be denied.
12. The Application was canvassed by way of written submissions. The Applicant filed his dated 10th November 2025. In them he gave the background of the application and set forth only one issue for determination. It was whether the prayer for extension of time was merited.
13. On it he submitted that the prayer was merited. He stated that the application had been brought 6 years late and that was why if he had approached this court for extension of time as provided for under Section 79 G of the Civil Procedure Act. He reproduced the provision. He stated is that he was dissatisfied with the judgment of the trial court. The delay in filing the Memorandum of Appeal was based on reasons he gave in the grounds in support of the application, which he reproduced. He argued that Article 159(2)(c) of the Constitution was the provision he relied on. He then relied on the case, being KARNY ZAHARIA & ANOTHER v SHALOM LEVI (sic) cited in SEREPHEN NYASANI MENGE v. RISPAH ONSARE [2018] eKLR. She concluded that the application be allowed.
14. The Respondent filed his written submissions Dated 17th December 2025. He raised one issue for determination which was whether the application was merited. He submitted that the law provides for an appeal to be filed within 30 days from the date of a decision unless there is a tangible reason compelling one not to file it within time. He added that the applicant was aware of the existence of this matter (sic) and every step that the Respondent was making towards the realization of the decree of the lower court, through various applications. He added that six years was a long time.
15. Further, that even if the Court were to be fair to the applicant to grant him to fire they out of time it has to consider that the respondent has rights, and Section 79G of the Civil Procedure Act may not cure the fatality. He added that there two or several applications before the lower court which had been concluded and still pending which if the Applicant was a law abiding citizen he should have adhered to but he had been neglecting them. Further, that the applicant had gotten an unsuspecting buyer and sold part of the suit land occupied by the Respondent and then try to move this court to appeal out of time.
16. The applicant was trying to tell the court that he had a sick brother but without any material to prove it. Also, he had never approached the respondent for any alternative dispute resolution of the matter. Rather, what triggered the instant application was the Respondents application dated 15th September 2025 for contempt of court which was still pending in the lower court. He prayed that the application be dismissed.
ISSUES, ANALYSIS AND DETERMINATION
17. His court has considered the application the response there too the law and the submissions of But is the only two issues for determination are whether the application is merited and who to bear the costs thereof.
18. The issue in the instant application is the applicant did not file an appeal from the judgment delivered against him in Homa Bay SPM ELC Case No. 18 of 2016 on the 20th day of November 2019 for reasons beyond his control and therefore seeks leave to file it out of time.
19. The law on filing of appeals from judgments or rulings delivered in the lower court to this Court, and the course of action when it is not done in time is Section 79G of the Civil Procedure Act, and the raft of decisions that interpret it. The provision stipulates 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.”
20. Extension of time to file an appeal is a matter of law. The power to extend the time is discretionary, and the discretion wide. However, it must be exercised judiciously. Thus, in Barclays Bank of Kenya Limited v Patrick Njuguna Kubai [2014] eKLR the learned judge stated as follows:
“Courts have wide and unfettered discretion to enlarge time to allow parties to do certain acts where time limitations have been given and to proceed to determine matters without undue regard to technicalities as provided for in Article 159 (2) (d) of the Constitution of Kenya, 2010. However, courts have to be careful when balancing this discretion by considering the consequences of certain acts which are not done within the stipulated period in particular where there are express and clear provisions of the law regarding those time lines.”
21. Also, in Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 OF 2020) UR it was held:
22. “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) 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.”
23. The discretion ought to be exercised on a case by case basis and in consideration of the circumstances that the party seeking its exercise places before the Court. The specific provision of law does not give any laundry of factors a Court is to consider in exercising the discretion. I need not analyze or distinguish the KARNY ZAHARIA case (supra). But in the Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others [2016] eKLR my learned sister Aburili J. gave a summary of such factors. They may not have been an exhaustive laundry list but they at least give a framework to guide as a start. She stated that they “include:
i. Whether there has been indolence or unexplained delay on the part of the applicant.
ii. Whether the applicant is guilty of abuse of the court process.
iii. Whether the enlargement will prejudice the defendant.
iv. Whether the denial of enlargement period will occasion prejudice to the applicant given the circumstances of the case.
v. Whether the enlargement is necessary for the effectual complete adjudication of the issues in controversy.
vi. Whether it is just and fair to enlarge time in the circumstances of the case.”
24. And the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR held as follows:
“16. Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.
17. The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
2. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
3. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
4. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
5. Whether there would be any prejudice suffered by the respondents if the extension was granted;
6. Whether the application had been brought without undue delay; and;
7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”
25. In the instant application the applicant blames the delay in filing the appeal in time on negotiations that were ongoing between him and the Respondent to resolve the matter (possibly post judgment), and illness that befell his unnamed brother whom he had to tend to hence incurring financial expenses. He also attributes it to an application which had to be determined first before he could move to the Appeal Court (sic), of an which Appeal had since been preferred against the application. He annexed a copy of the Judgment as DOO -1 and a copy of draft Memorandum of Appeal as DOO 2.
26. On his part the Respondent contends that there have never been any negotiations between him and the applicant, and the applicant has never had any sick brother or if he had any he did not prove that fact. Also, that after the judgment, the applicant never interfered with his occupation of the suit land until early this year after the Respondent ploughed and planted his crops (maize) and the applicant) sold a portion of the suit land the respondent occupied and fenced it without his consent. Lastly, when the applicant realized he could not access to his crops, he applied to be allowed to access and tend them, and then brought the instant application upon realizing that there was a contempt court application and orders against him in the trial court, seeking for his arrest for court contempt.
27. I have carefully considered these two competing arguments. At first, I find that the applicant has not proved the facts he asserts, by way of any documentary support. Further, the reason of having a negotiations, assuming it to be correct, for almost six years is a matter of fact which ought to be evidenced in writing, which is absent. Also, illness of a brother could not have been for all the six years without even notice by neighbours, let alone it depriving the applicant only KShs. 1550/= for filing a Memorandum of Appeal. In any event the facts he sought to rely on were challenged by respondent by way of an Affidavit hence he needed to do more than just merely put them forth. Again, he has not controverted the depositions by respondent that, among others, he (the applicant) moved this court upon realizing that there was an application for contempt of court against him in the trial court. I find that for these reasons above, the applicant has not given any sufficient reasons why he delayed in filing the appeal or even instant application for six years except for the reasons that were been advanced by the respondent as the alternative set of prevailing circumstances. That is to say that, indeed, there had been numerous attempts to execute the decree in the lower court, and when it came to the last point of execution of the same by way of contempt of court against him he filed the instant application to forestall it. It is for those reasons that I do not find merit in the application. I dismiss it with costs to the respondent.
28. Orders accordingly.
Ruling dated, signed and delivered via the Teams Platform this 24th day of April, 2026.
Hon Dr. iur Nyagaka
Judge
In the presence of,
Ms. Ochieng Advocate for the Applicant
No appearance for the Respondent
1. The Applicant filed a Notice of Motion brought 11th October 2025 under Order 42 Rules 1, 2, 4 and 6, Order 51 Rule 1 of Civil Procedure Rules, 2010, Section 1A, 1B, 63(e), 79G and 79 of the Civil Procedure Act and all other enabling provisions of the Law. He sought the following ORDERS that:
1. …Spent.
2. THAT this Honourable Court be pleased to grant leave to the Applicant/Appellant to file a Memorandum of Appeal out of time.
3. THAT this Honourable Court be pleased to grant an order for stay of execution of the judgment and the consequential order issued on the 20th day of November 2019 in Homa Bay SPM ELC Case No. 18 of 2016 pending the hearing and determination of this application.
4. The costs of the Application be provided for.
2. The Application was based on the grounds that the delay in filing the Memorandum of Appeal was occasioned inadvertently by the parties herein had sought to reconcile (sic) the matter by way of alternative dispute resolution (ADR) mechanism thereby making it impossible to appeal against the decision. The appellant was not satisfied by the judgment of the Hon. T. M. Olando delivered on 20th November 2019 in Homer Bay SPM ELC No. 18 of 2016 in favor of the respondent. He wished to appeal against the Ruling but the time within which to file an appeal had since lapsed. He therefore sought leave of the court to file the appeal out of time.
3. Additionally, during the process of seeking to reconcile the matter (sic) by ADR, his brother fell ill and he had to tend to him. This caused him to incur financial expenses hence his inability to appeal in time.
4. Further, that in the meantime he filed an application which had to be determined first before he could move to the Appeal Court, which application an Appeal had since been preferred against. The instant application had been brought in extreme good faith and without unreasonable delay and had high chances of success. Also, the intended appeal was highly meritorious with high chances of success. Allowing the instant application would not occasion injustice to the respondent. The interests of justice required the grant of the prayers sought.
5. The application was supported by the Affidavit sworn by the Applicant Dick Otieno Okumu. He repeated the contents of grounds of the application save that to them he added that the trial court had dismissed his suit for want of proof by finding that he had not proved that the respondent had trespassed onto the land. He annexed a copy of the Judgment and marked it the DOO -1. He also annexed to the affidavit a copy of draft Memorandum of Appeal which he said wished to file.
6. The application was opposed through a replying affidavit sworn by JOHN OORO MINENE who deposed that the Applicant filed a land case against the him and it was dismissed for want of proof of trespass onto the suit land, namely, Kanyamwa/K/K/Kakaeta/1443. The parcel was in the name of the Applicant. Further, after the suit was dismissed on 20th November 2019 the Applicant neither at any time ever sought any other alternative dispute resolution nor did he file any appeal to challenge the judgment. After the judgment, the applicant never interfered with the occupation of the land by respondent until early this year after the latter had ploughed and planted his crops (maize) that he (the applicant) sold a portion of the suit land where the respondent occupied and fenced the same without the consent of the respondent. He denied him opportunity to weed and tend the crops or maize.
7. Further, upon the respondent realizing that he could not access to his crops, he applied to court to be allowed to access and tend for his crops. He tried to remove the illegally erected fence and the administrator of the court and to sign the transfer forms in place of the applicant who had declined, refused and or underrated the directive of the court which was granted.
8. The applicant then moved this court in the instant application after realizing that he had contempt court orders and there was an application in the original case seeking for his arrest for court contempt, which had high chances of success against him. He now sought to hid behind this Court to defeat the cause of justice.
9. Further, that if the Applicant was satisfied with the judgment, there was a delay of six years before preferring an appealing against the judgment. This court should not allow itself to be used by people bent not adhering to orders. The time of appeal had already been overtaken by events and the application was a waste of the precious time of the court. The court ought not entertain such people bent on frustrating others by trying to (ab)use its process.
10. The Applicant had never had any sick brother. He had not indicated to the court what had become of his purported sick brother. The Applicant could not be trusted.
11. There was an application against the applicant that was pending determination which was for contempt of court by him having severally defied court orders since the delivery of the judgment on 20th November 2019. The application was brought in bad faith and was an abuse of court process. It was intended to delay the course of justice hence it be denied.
12. The Application was canvassed by way of written submissions. The Applicant filed his dated 10th November 2025. In them he gave the background of the application and set forth only one issue for determination. It was whether the prayer for extension of time was merited.
13. On it he submitted that the prayer was merited. He stated that the application had been brought 6 years late and that was why if he had approached this court for extension of time as provided for under Section 79 G of the Civil Procedure Act. He reproduced the provision. He stated is that he was dissatisfied with the judgment of the trial court. The delay in filing the Memorandum of Appeal was based on reasons he gave in the grounds in support of the application, which he reproduced. He argued that Article 159(2)(c) of the Constitution was the provision he relied on. He then relied on the case, being KARNY ZAHARIA & ANOTHER v SHALOM LEVI (sic) cited in SEREPHEN NYASANI MENGE v. RISPAH ONSARE [2018] eKLR. She concluded that the application be allowed.
14. The Respondent filed his written submissions Dated 17th December 2025. He raised one issue for determination which was whether the application was merited. He submitted that the law provides for an appeal to be filed within 30 days from the date of a decision unless there is a tangible reason compelling one not to file it within time. He added that the applicant was aware of the existence of this matter (sic) and every step that the Respondent was making towards the realization of the decree of the lower court, through various applications. He added that six years was a long time.
15. Further, that even if the Court were to be fair to the applicant to grant him to fire they out of time it has to consider that the respondent has rights, and Section 79G of the Civil Procedure Act may not cure the fatality. He added that there two or several applications before the lower court which had been concluded and still pending which if the Applicant was a law abiding citizen he should have adhered to but he had been neglecting them. Further, that the applicant had gotten an unsuspecting buyer and sold part of the suit land occupied by the Respondent and then try to move this court to appeal out of time.
16. The applicant was trying to tell the court that he had a sick brother but without any material to prove it. Also, he had never approached the respondent for any alternative dispute resolution of the matter. Rather, what triggered the instant application was the Respondents application dated 15th September 2025 for contempt of court which was still pending in the lower court. He prayed that the application be dismissed.
ISSUES, ANALYSIS AND DETERMINATION
17. His court has considered the application the response there too the law and the submissions of But is the only two issues for determination are whether the application is merited and who to bear the costs thereof.
18. The issue in the instant application is the applicant did not file an appeal from the judgment delivered against him in Homa Bay SPM ELC Case No. 18 of 2016 on the 20th day of November 2019 for reasons beyond his control and therefore seeks leave to file it out of time.
19. The law on filing of appeals from judgments or rulings delivered in the lower court to this Court, and the course of action when it is not done in time is Section 79G of the Civil Procedure Act, and the raft of decisions that interpret it. The provision stipulates 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.”
20. Extension of time to file an appeal is a matter of law. The power to extend the time is discretionary, and the discretion wide. However, it must be exercised judiciously. Thus, in Barclays Bank of Kenya Limited v Patrick Njuguna Kubai [2014] eKLR the learned judge stated as follows:
“Courts have wide and unfettered discretion to enlarge time to allow parties to do certain acts where time limitations have been given and to proceed to determine matters without undue regard to technicalities as provided for in Article 159 (2) (d) of the Constitution of Kenya, 2010. However, courts have to be careful when balancing this discretion by considering the consequences of certain acts which are not done within the stipulated period in particular where there are express and clear provisions of the law regarding those time lines.”
21. Also, in Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 OF 2020) UR it was held:
22. “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) 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.”
23. The discretion ought to be exercised on a case by case basis and in consideration of the circumstances that the party seeking its exercise places before the Court. The specific provision of law does not give any laundry of factors a Court is to consider in exercising the discretion. I need not analyze or distinguish the KARNY ZAHARIA case (supra). But in the Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others [2016] eKLR my learned sister Aburili J. gave a summary of such factors. They may not have been an exhaustive laundry list but they at least give a framework to guide as a start. She stated that they “include:
i. Whether there has been indolence or unexplained delay on the part of the applicant.
ii. Whether the applicant is guilty of abuse of the court process.
iii. Whether the enlargement will prejudice the defendant.
iv. Whether the denial of enlargement period will occasion prejudice to the applicant given the circumstances of the case.
v. Whether the enlargement is necessary for the effectual complete adjudication of the issues in controversy.
vi. Whether it is just and fair to enlarge time in the circumstances of the case.”
24. And the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR held as follows:
“16. Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.
17. The court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:
1. Extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
2. A party who sought extension of time had the burden of laying a basis for it to the satisfaction of the court;
3. Whether the court ought to exercise the discretion to extend time, was a consideration to be made on a case to case basis;
4. Whether there was a reasonable reason for the delay, which ought to be explained to the satisfaction of the court;
5. Whether there would be any prejudice suffered by the respondents if the extension was granted;
6. Whether the application had been brought without undue delay; and;
7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”
25. In the instant application the applicant blames the delay in filing the appeal in time on negotiations that were ongoing between him and the Respondent to resolve the matter (possibly post judgment), and illness that befell his unnamed brother whom he had to tend to hence incurring financial expenses. He also attributes it to an application which had to be determined first before he could move to the Appeal Court (sic), of an which Appeal had since been preferred against the application. He annexed a copy of the Judgment as DOO -1 and a copy of draft Memorandum of Appeal as DOO 2.
26. On his part the Respondent contends that there have never been any negotiations between him and the applicant, and the applicant has never had any sick brother or if he had any he did not prove that fact. Also, that after the judgment, the applicant never interfered with his occupation of the suit land until early this year after the Respondent ploughed and planted his crops (maize) and the applicant) sold a portion of the suit land the respondent occupied and fenced it without his consent. Lastly, when the applicant realized he could not access to his crops, he applied to be allowed to access and tend them, and then brought the instant application upon realizing that there was a contempt court application and orders against him in the trial court, seeking for his arrest for court contempt.
27. I have carefully considered these two competing arguments. At first, I find that the applicant has not proved the facts he asserts, by way of any documentary support. Further, the reason of having a negotiations, assuming it to be correct, for almost six years is a matter of fact which ought to be evidenced in writing, which is absent. Also, illness of a brother could not have been for all the six years without even notice by neighbours, let alone it depriving the applicant only KShs. 1550/= for filing a Memorandum of Appeal. In any event the facts he sought to rely on were challenged by respondent by way of an Affidavit hence he needed to do more than just merely put them forth. Again, he has not controverted the depositions by respondent that, among others, he (the applicant) moved this court upon realizing that there was an application for contempt of court against him in the trial court. I find that for these reasons above, the applicant has not given any sufficient reasons why he delayed in filing the appeal or even instant application for six years except for the reasons that were been advanced by the respondent as the alternative set of prevailing circumstances. That is to say that, indeed, there had been numerous attempts to execute the decree in the lower court, and when it came to the last point of execution of the same by way of contempt of court against him he filed the instant application to forestall it. It is for those reasons that I do not find merit in the application. I dismiss it with costs to the respondent.
28. Orders accordingly.
Ruling dated, signed and delivered via the Teams Platform this 24th day of April, 2026.
Hon Dr. iur Nyagaka
Judge
In the presence of,
Ms. Ochieng Advocate for the Applicant
No appearance for the Respondent