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|Case Number:||Miscellaneous Application 58 of 2015|
|Parties:||Nicholas Ouma Were v Victor Benard Wafula|
|Date Delivered:||16 Dec 2015|
|Court:||High Court at Busia|
|Citation:||Nicholas Ouma Were v Victor Benard Wafula  eKLR|
|Case Outcome:||Application allowed in part|
|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 BUSIA
MISC APPL NO. 58 OF 2015
NICHOLAS OUMA WERE……………………………..APPLICANT
VICTOR BENARD WAFULA……..………...……….RESPONDENT
R U L I N G
1. By an Application dated 5th May 2015 this Court is moved for the following orders:-
2. The Applicant was the Defendant in Busia CMCC 358 of 2012 VICTOR BENARD WAFULA VS- NICHOLAS OUMA WERE. The Applicant is desirous of appealing against a Judgment delivered therein in favour of the Respondent. In an affidavit sworn on 5th May 2015, the Applicant has explained why he did not file the Appeal within the period prescribed by the law.
3. The Applicant has deponed that the Judgment was read in absence of both himself and his Advocate. He explained that he has been ill since 25th May 2014 and was therefore unable to follow the proceedings in the Lower Court. The Applicant has annexed to his affidavit treatment notes from Ikonzo Dispensary in proof of his illness. The Applicant also argues that neither he nor his advocate were notified of the entry of Judgment.
4. Annexed to his affidavit is also a draft Memorandum of Appeal. The Applicant believes that the intended Appeal is highly meritorious.
5. In resisting the Application, the Respondent filed an affidavit through his Advocate Mr. Francis Omondi sworn on 16th June 2015. The Advocate depones that the Trial closed without the Defendant offering any evidence. The Court then fixed the matter for mention on 22nd July 2014 for parties to file their respective submissions. That he duly notified Counsel for the Applicant of the mention date. On 22nd July 2014, both advocates appeared in Court but the Applicant’s Advocate had not filed any submissions and requested for more time to do so. The request was granted and the matter stood over to 29th July 2014, a date when the Trial Court did not sit. The Advocate fixed the matter for mention on 18th August 2014 (or should this be 19th of August 2014?). On 19th August 2014 Advocates for both parties were in Court and the Hon. Magistrate fixed the matter for Judgment on 30th September 2014. On that day Judgment was delivered but in the absence of the Applicant’s Counsel. Further, through a letter dated 18th November 2014, Mr. Omondi wrote a letter to the Applicant’s Advocate demanding settlement of the Judgment debt but they did not respond.
6. This Court was asked by the Applicant to allow the Application because it had merit and was brought without inordinate delay. Further that the Respondent will not be prejudiced with such orders.
7. The Respondent argued that the Advocate for the Applicant was aware of the date of Judgment but did not explain why he never attended Court. That at any rate, once the Judgment was delivered, it was brought to the attention of the Applicant’s Advocate through a letter of 18th November 2014, and the Application was therefore brought after undue delay. Further that there was no legal requirement for the Advocate of the Respondent to serve a Notice of Entry of Judgment upon the Applicant’s Counsel as the matter in the Lower Court proceeded inter-parties and on merit. Lastly this Court was asked to disregard the treatment notes shown to it by the Applicant as they did not prove incapacity on part of the Applicant because there was no medical opinion on the nature of treatment received by the Applicant.
8. It is true that the Applicant’s Counsel has not explained why he did not attend Court on the Judgment date. It is also true that if any effort had been made by the Advocate to find out what transpired in his absence on the Judgment date, then it has not been shown to this Court. In addition, why this Application was not brought soon after 18th November 2014 upon the Applicant’s Advocate being notified of the Judgment by the Respondent’s Advocate was not adequately explained. The Application was filed some six months later on 6th May 2015. All these disfavor the Application for enlargement of time.
9. Yet some latitude should be judicially exercised by the Court so as to facilitate the determination of matters including Appeals, on merit. Although there was delay in bringing this Application, the Respondent’s may not be prejudiced if he is not further delayed from enjoying the fruits of a Judgment in his favour. This Court although inclined to allow the Application for enlargement of time is unable to accede to the request for stay of execution as the Application does not meet the conditions for stay set out in Order 42 Rule 6(2) of the Civil Procedure Rules.
10. Order 42 Rule 6(2) of the Civil Procedure Rules provides:-
I have keenly looked at both the Grounds and the Affidavit of the Applicant in support of the Application, the Applicant does not argue or state that it shall suffer any substantial loss if stay is not granted.
My orders are therefore as follows:-
Dated, signed and delivered at Busia this 16th day of December 2015.
J U D G E
In the Presence of :-
Oile - C/Assistant
NA/ for Applicant
N/A - for the Respondent