The Republic VS REBECCA MUENI MUSAU AND GEORGE GITAU MAINA The Republic VS REBECCA MUENI MUSAU AND GEORGE GITAU MAINA

The applicant by way of notice of a motion dated 29^th July 2024 moved to this court seeking the following orders:
THAT the applicant be granted leave to file petition of Appeal out of time.
THAT the annexed Petition of Appeal be deemed properly filed upon granting the leave so sought.
THAT the court grants such orders as interest of justice as may demand.
In support of the application, prosecution counsel Everlyne Mutisya swore an affidavit on the 29^th July 2024. The gist of the application and the affidavit in support is that the applicant was unable to obtain certified copies of proceedings in Milimani Chief Magistrate’s court Criminal Case No.703 of 2019 Republic versus Rebecca Mueni Musau & Another before the lapse of the 14 days window allowed for appeal.
According to Ms. Mutisya, the applicant wrote to the Chief Magistrates court on 19^th July 2024 seeking to be supplied with a copy of the Ruling delivered on 10^th July 2024 by the learned Honourable R.K Ondieki SPM.
The deponent further states that a certified copy of the ruling was not availed to them until the 25^th July 2024 which date was beyond the 14 days allowed for appeal.
The prosecution counsel has annexed to the affidavit in support the certified ruling by the court and a copy of the letter requesting for the ruling.
The respondents were duly served with the application and at the hearing Mr. Nyaribo counsel for the respondents indicated to the Court that he was not opposed to the application in principle on condition that the order issued by this court on the 19^th of September 2024 was complied with. The order of 19^th September 2024 directed the Deputy Registrar of this court to take possession of the exhibit which was in the form of cash and ensure that the same is kept in safe custody till the hearing of this application.
Mr. Nyaribo counsel for the respondents further pleaded with the court to reiterate the order in order to guarantee that the justice of the matter is not compromised by loss of the exhibit.
Mr. Chebii counsel for the applicant relied on the grounds of the face of the application and the supporting affidavit in its entirety. Mr. Chebii added his voice to the plea by Mr. Nyaribo that the exhibit be preserved by the court until the intended appeal is filed, heard and determined.
The principles governing extension of time are well settled by the Supreme court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR . The supreme court held as follows;

“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.
The supreme court was clear that a party seeking an order of extension of time is basically invoking the exercise of judicial discretion and such discretion is only to be exercised in favor of a litigant who demonstrates that he was unable to do that which was expected of him under the law on account of matters not falling within his control.
The court went further to set out the conditions that must be satisfied before a party can be granted an order for extension of time to file an appeal as hereunder: -

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 for 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;
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
The applicant has demonstrated to this court that he sought to be supplied with a certified copy of the proceedings and the ruling within 9 days of the delivery of the ruling. However, it was not until the 25^th July 2024, a day after the 14 days allowed for appeal, that the court made available a certified copy of the ruling prompting the applicant to file the instant application on 1^st August 2024.
The application by the applicant was filed 8 clear days after the court issued the ruling.
It is the view of this court that the applicant has come to equity with clean hands for the delay cannot be attributed to him. The applicant did not also take an unreasonable period before filing the instant application thus he cannot be accused of being guilty of laches.
This court takes judicial notice of the challenge bedeviling our courts in processing of proceedings due to the volume of work in our courts.
The applicant cannot therefore be faulted in the circumstances.
In view of the above, this court is inclined to grant the orders sought by the applicant in the following terms;-
Leave be and is hereby granted to the applicant to file and serve a petition of appeal within the next 7 days from today failing which the leave granted shall be deemed to have lapsed.
The deputy registrar is hereby ordered to ensure that the money produced in the lower court as an exhibit is secured pending the filing, hearing and determination of the intended appeal.
The Deputy Registrar shall make a record of compliance with order (b) above in this file.
This file shall be placed before this court on the 15^th October 2024 for confirmation of compliance with orders (a) & (b) above.
It is so ordered.