LUKA KOTUT VS RICHARD RUTTO KIRUI AND ATTORNEY GENERAL LUKA KOTUT VS RICHARD RUTTO KIRUI AND ATTORNEY GENERAL

Introduction
1. By a ruling delivered by this court on 29th October 2024, this court allowed the application dated 3rd July 2024 for stay of execution of judgment pending appeal on condition that;

“…The applicant shall, within 21 days from the date of delivery of this ruling, deposit in a joint interest earning account to be opened in the name of his advocate and advocate of the respondent Kshs 200,000/- being security for costs and such decree /order as may ultimately be binding on him,
i. The applicant is also directed to deposit the original title of the suit property in court, within 21 days from the date of delivery of this ruling, as additional security for due purpose of such order as may ultimately be binding on him;
ii. Should the applicant fail to meet the following conditions set out in (i) and (ii) above, within the time given, the application dated 3rd July 2024 shall automatically stand dismissed with costs. (emphasis own)
iii. Costs of the application dated 3rd July 2024 shall abide the outcome of the appeal.”

2. The applicant failed to comply with the orders of the court within the timelines given, prompting filing of the application dated 3rd December, 2024. The application seeks among other orders; extension of time to comply with the conditions and orders issued by the court in the ruling delivered on 29th October 2024.

3. The application is premised on the grounds on its face and supported by the affidavit of Luka Kotut sworn on 3rd December, 2024. He avers that he failed to comply with the orders of the court because no notice was issued to him that ruling for the application dated 3rd July 2024 would be delivered on 29th October 2024; that he had earlier received communication vide a notice dated 22nd October 2024 that the ruling would be delivered on the 28th October 2024; that by the time he learnt that the ruling had been delivered on 29th October 2024 from the 1st respondent’s advocate when he sought to fix the matter for taxation, time to comply with the conditions and orders issued by the court had lapsed.

4. He urges the court to allow his application as he has filed an appeal; that unless the orders sought are granted, the subject matter of the appeal will be rendered nugatory and he stands to suffer grave prejudice.

5. When the application came for inter parties hearing on 29th January 2025, Counsels for the first and second respondents stated that they were not opposing the application.

Analysis and Determination.
6. Under Order 50 Rule 6 of Civil Procedure Rules, the Court has an express jurisdiction and discretion to extend time.
“Order 50 Rule 6 Power to enlarge time.

Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:
Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
7. In the Supreme Court decision, Nicholas Kiptoo Arap Salat v. Independent Electoral and Boundaries Commission & Ors. (2014) Eklr, the court set down the underlying principles that a court should consider in exercise of the discretion to extend time as follows:
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying 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;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whetherthe application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

8. In considering the primary principle on the discretionary nature of an order for extension of time on a case to case basis, this court needs to examine the circumstances of the present case. In this case, the applicant has stated that he was not aware that the date for delivery of the ruling had changed as he did not receive a notice to that effect. However, upon learning that the ruling had been delivered, he filed the instant application as time to comply had lapsed. I have perused the court record and noted that it is true that the date for delivery of the ruling changed and it is possible that the wrong date was communicated to the parties. The applicant has lodged his appeal which is yet to be determined. I am convinced that if the applicant is not given an opportunity to deposit the 200,000/- as security for costs and the original title deed, then the appeal may be rendered nugatory and will only be there for academic purposes. There will also be no prejudice suffered by the respondents if time is extended to allow the applicant make the deposits as had previously been directed by this court. This court also notes that the instant application was brought promptly after the applicant learnt of delivery of the ruling.

9. For the foregoing reasons, I am inclined to exercise the discretion of this court in favour of the applicant. Consequently, l extend time within which to comply with the conditions set forth in the ruling dated 29th October 2024 by 7 days from the date of delivery of this ruling failing which the application stands automatically dismissed.

10. Orders accordingly.

Dated, signed and delivered at Iten this 10th day of February, 2025.

Ruling delivered virtually in the presence of;-
Mr. Mogambi for the Appellant/Applicant
N/A for the 1st Respondent
Mr. Kwame for the 2nd Respondent
Court Asst.: Christine