1. Through the application dated 29th October 2024, the applicant seeks the following orders: -
1) Spent
2) That this honourable court be pleased to enlarge/extend time within which to re-hear request for Review no. 71 of 2024 as per the orders issued by this court on 8th October 2024.
3) That costs of this application be in the cause.
2. On the 8th October 2024 the court rendered judgement in the instant matter in the instant terms:
1) An Order of Certiorari to bring into this Honourable Court for purposes of being quashed the entire decision of The Public Procurement Administrative Review Board, the Respondent herein, in Application Number 71 of 2024, dated 12th August, 2024 is hereby issued.
2) An order of Prohibition to prohibit and/or restrain the 1st & 2nd Interested party from awarding the tender and/or signing any contract with the 3rd Interested Party herein in respect to Tender Number KRB/T/12/2023-2023 for the provision of private security service at KRB Headquarters. (hereinafter the “Tender”) is hereby issued.
3) An order of Mandamus compelling the Respondent to re-hear Application Number 71 of 2024, dated 12th August, 2024 is hereby issued.
4) The rehearing shall be done within seven days of today’s date.
3. It is the Applicants’ case that at the time of delivery of the Judgement the Applicants were not represented and as such were unaware that the court had made an order for re-hearing of Application the Request for Review No. 71 of 2024.
4. The court is guided by the case of the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: -
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.
5. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following: -
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
6. The applicant has not made any effort to demonstrates where it was for the 21 days since the judgement was delivered.
7. The applicant has, elected not to inform the court whether the parties to the procurement have advanced with the procurement process given the 21 days have passed since the judgment was delivered.
8. The court has taken the liberty to access the court proceedings for the 8th October 2024 as captured in the case tracking system from where the court is satisfied that Ms.Gathenya attended court and held brief for Mr.Munene when the matter was called out at 10.05 AM.
9. I have also confirmed from the physical file that Ms. Gathenya attended court on 8th October 2024.
10. The Application is unopposed.
Disposition;
11. The application has been brought after a long unexplained delay.
12. The Applicant has not approached the court with clean hands.The Applicant was represented in court when the judgment was delivered.
Order;
The Application is dismissed with costs.
1) Spent
2) That this honourable court be pleased to enlarge/extend time within which to re-hear request for Review no. 71 of 2024 as per the orders issued by this court on 8th October 2024.
3) That costs of this application be in the cause.
2. On the 8th October 2024 the court rendered judgement in the instant matter in the instant terms:
1) An Order of Certiorari to bring into this Honourable Court for purposes of being quashed the entire decision of The Public Procurement Administrative Review Board, the Respondent herein, in Application Number 71 of 2024, dated 12th August, 2024 is hereby issued.
2) An order of Prohibition to prohibit and/or restrain the 1st & 2nd Interested party from awarding the tender and/or signing any contract with the 3rd Interested Party herein in respect to Tender Number KRB/T/12/2023-2023 for the provision of private security service at KRB Headquarters. (hereinafter the “Tender”) is hereby issued.
3) An order of Mandamus compelling the Respondent to re-hear Application Number 71 of 2024, dated 12th August, 2024 is hereby issued.
4) The rehearing shall be done within seven days of today’s date.
3. It is the Applicants’ case that at the time of delivery of the Judgement the Applicants were not represented and as such were unaware that the court had made an order for re-hearing of Application the Request for Review No. 71 of 2024.
4. The court is guided by the case of the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: -
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.
5. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following: -
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
6. The applicant has not made any effort to demonstrates where it was for the 21 days since the judgement was delivered.
7. The applicant has, elected not to inform the court whether the parties to the procurement have advanced with the procurement process given the 21 days have passed since the judgment was delivered.
8. The court has taken the liberty to access the court proceedings for the 8th October 2024 as captured in the case tracking system from where the court is satisfied that Ms.Gathenya attended court and held brief for Mr.Munene when the matter was called out at 10.05 AM.
9. I have also confirmed from the physical file that Ms. Gathenya attended court on 8th October 2024.
10. The Application is unopposed.
Disposition;
11. The application has been brought after a long unexplained delay.
12. The Applicant has not approached the court with clean hands.The Applicant was represented in court when the judgment was delivered.
Order;
The Application is dismissed with costs.