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|Case Number:||Elc Misc Application 13 of 2015|
|Parties:||David Mithamo Gatitu v Boniface Karimi Nyamu|
|Date Delivered:||27 Nov 2015|
|Court:||High Court at Kerugoya|
|Judge(s):||Boaz Nathan Olao|
|Citation:||David Mithamo Gatitu v Boniface Karimi Nyamu  eKLR|
|Court Division:||Land and Environment|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC MISC APPLICATION NO. 13 OF 2015
DAVID MITHAMO GATITU…………………………………………APPLICANT
BONIFACE KARIMI NYAMU……………………………………RESPONDENT
I have before me the applicant’s Notice of Motion dated 4th March 2015 brought under Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules seeking the following prayers:-
The application which is supported by the applicant’s affidavit is also based on the following grounds:-
The application is opposed and in his replying affidavit, the respondent has deponed that the appeal has no merit at all and is mere frivolous litigation. Further, the respondent has deponed that he stands to suffer irreparable injury since the applicant has custody of the suit premises. However, should the application be allowed, then the applicant be condemned to pay throw away costs.
I can see from the record that the respondent did also file a Notice of Motion seeking the dismissal of the application now before me. I do not think that that was necessary as the replying affidavit was sufficient.
I have considered the application which clearly seeks the exercise of my discretion and in exercising that power, I must bear in mind that the primary concern of a Court of law is to do justice to the parties.
On the issue of leave to appeal out of time. Section 79G of the Civil Procedure Act provides as follows:-
“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”. emphasis added.
In BAGAJO VS CHRISTIAN’S CHILDREN FUND INC 2004 2 K.L.R 73 Ringera Ag. J.A (as he then was) gave the following guidelines with regard to the exercise of such discretion:-
also bearing in mind the importance of the case.
While Ringera Ag. J.A (as he then was) was considering an application under the Court of Appeal rules, similar guidelines would apply in an application such as this since both seek the exercise of the Court’s discretion.
In am also guided by the recent decision of the Supreme Court of Kenya in the case of NICHOLAS KIPTOO Arap KORIR SALAT VS IEBC and 7 OTHERS 2014 e K.L.R where the following principles for extension of time for filing appeal were laid down:-
See also FAHIM TWAHA VS TIMAMU ABDALLA & TWO OTHERS, SUPREME COURT OF KENYA CIVIL APPLICATION NO. 35 of 2014.
This application will therefore be determined bearing in mind those principles.
The starting point is when the judgment subject of this appeal sought to be filed was delivered. It is not in dispute the same was delivered on 16th September, 2014 and the applicant says he was not present when the judgment was delivered. That is not really rebutted by the respondent’s replying affidavit. The applicant states further that when he got to know about the judgment, he applied to have it set aside on 10th September 2014. That must be an error because he could not have applied on 10th September 2014 to set aside a judgment delivered on 16th September 2014! Nonetheless, what is clear is that on 16th December 2014, the trial magistrate delivered a ruling dismissing that application. On 29th December 2014, the applicant applied for copies of the proceedings
and judgment and even paid for them but it was not until 20th February 2015 that the same were supplied long after the time within which to file the appeal had expired. A certificate of delay was duly issued.
Bearing all the above in consideration, it is clear to me that the applicant has explained the reason for not filing the appeal in time to my satisfaction. Having obtained copies of proceedings and judgment on 20th February 2015, the applicant promptly filed this application on 9th March 2015.
I have also looked at the draft memorandum of appeal. The applicant says judgment was only entered against him yet there were other defendants. The judgment itself is not clear on that issue. Applicant also says he was not a party to the agreement subject of this dispute. That raises arguable issues in the appeal which this Court ought to consider.
In the circumstances, I find that the application herein is well merited and I allow it on the following conditions:-
27TH NOVEMBER, 2015
B.N. Olao – Judge
Mwangi – CC
Applicant – present
Respondent – absent
COURT: Ruling dated, delivered and signed this 27th day of November, 2015 in open Court.
27TH NOVEMBER, 2015