REPUBLIC OF KENYA

IN THE HIGH COURT

AT NYAMIRA

MISCELLANEOUS CIVIL APPLICATION NO. 26 OF 2020

NYAMOITA KERUBO MATUNDA & LYDIA KEMUNTO         

JUMA(Suing as the Legal Representatives of the Estate of           

KENNEDY NYANGAU MATUNDA (Deceased))..APPLICANTS

- VRS-

RULING

By the Notice of Motion dated 17^th June 2020 expressed to be brought under Section 79G and Section 95 of the Civil Procedure Act and Order 49 of the Civil Procedure Rules the applicant seeks the following orders: -

“1. That the Honorable court be pleased to grant leave to appeal out of time against the part judgment and decree of Hon. W. C. Waswa Magistrate’s Court at Nyamira delivered on 16^th March, 2020.

2.  That the costs of this application be provided for.”

The application is premised on the following grounds: -

“(a)  That the advocate for the applicant was unaware of the delivery of judgment on 16^th March, 2020 as the country was thrown into a standstill over the breakout of COVID-19 necessitating closure of courts and/or scaling down of court activities throughout the country effective 16^th March 2020.

(b) That it was not until the advocate of the Respondent sent a letter dated 8^th June 2020 and upon inquiry by the applicant’s advocates on record, they found out that the judgment had been delivered on 16^th March, 2020.

(c) That soon thereafter the advocate of the respondent sent the advocate of the proposed applicants a copy of the judgment via email on 12^th June 2020 and upon perusal of the same the applicant wishes to appeal against part of the said decision.

(d) At the time of learning of the delivery of the judgment the appeal period had lapsed hence the need to seek leave of the court to appeal out of time.

(e) That the respondent would not suffer any prejudice in the event the orders sought are granted.”

The background of this appeal is that the on 16^th March, 2020 the trial court awarded the applicants a sum of Kenya Shillings, Nine Hundred and Fifty Thousands (Kshs. 950,000/=) as general damages for fatal injuries sustained by the deceased in a road accident that occurred along Nyamira - Senta road on 1^st July 2013 involving motor cycle registration number KMDA 817N and motor vehicle registration number KAS 691P.  According to Counsel for the applicants judgement was scheduled to be delivered on 16^th March 2020 but due to Covid-19 there was scaling down of court activities thus preventing them from attending court.  Counsel contended that he only became aware of the judgement on 12^th June 2020 when he received an email from the advocate for the respondent.  Immediately after sharing the judgment with the applicants they expressed their dissatisfaction with the same and instructed his firm to appeal against part of the decision more particularly the quantum of damages.  Counsel submitted that the delay to lodge an appeal was not deliberate and that the intended appeal has overwhelming chances of success and it is in the interest of justice that the said application be allowed.

By his replying affidavit filed on 22^nd September 2020 the respondent opposed the application and stated that on 16^th March 2020 the court was not closed and that judgment was delivered in open court and that whereas the applicants deny being privy to the date of delivery of the judgment, no expeditious steps were taken by them to inquire on the same and they were therefore indolent.  The respondent further states that he has acted in good faith and paid the decretal sum in full and that this application is an afterthought and a waste of time. He further contends that the appeal raises no triable issues and is doomed to fail. He further asserts that the application is made in bad faith is actuated by malice and is intended to derail the quick disposal of the suit.

The application was canvassed by way of written submissions.

Issues for determination

Having considered the application, the replying affidavit, the rival submissions and the cases cited by both parties, what calls for determination is whether this court should extend time for filing the appeal.  Section 79G of the Civil Procedure provides that;

“79G Every appeal from subordinate court to 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 reason and sufficient cause for not filing the appeal in time.”

Section 95 of Civil Procedure Act expressly states that;

95. “Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

It is clear therefore that this court has a wide and unfettered discretion to extend or enlarge time for filing an appeal.  However, that discretion must be exercised judicially.  In the case of Leo Sila Mutiso v Rose Hellen Wangari cited with approval by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltds [2003] eKLR it was held: -

“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.  It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly) the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.”

The applicant must therefore demonstrate sufficient reasons in order to benefit from the discretion of the court.  Whereas I appreciate there was downscaling of court operations as from 16^th March 2020 due to the Covid-19 pandemic I am also alive to the Practice Directions gazetted by the Honourable the Chief Justice in the same month which ensured that the proceedings in the courts continued.  I am also aware of a memo to all courts from the Chief Justice which encouraged courts to continue dealing with cases remotely.  That memo is dated 23^rd April 2020.  The courts did not therefore shut down completely but continued to hear and determine matters electronically.  The registries were also open and Counsel for the applicant could if, he had wished to, inquired into the position of his client’s judgment given that he was aware that it was to be delivered on 16^th March 2020.  He has admitted that he did not do so until June which is a period of three months since delivery of the judgment.  In my view the delay of three months on the part of Counsel was inordinate.  Moreover, Sections 1A and 1B of the Civil Procedure Act place a responsibility not just upon the Advocate but also the litigant to ensure the efficient and just determination of disputes within the shortest time possible.  The applicants have themselves not sworn an affidavit to inform this court what steps they took pursuant to the duty placed upon them by Section 1B of the Civil Procedure Act.  It is my finding therefore that the unexplained delay of three months is not only inordinate but also inexcusable       and for that reason the applicants are not entitled to the exercise of this court’s discretion in their favour.  It would also be unjust to draw the respondent back into a litigation which to him ended when he paid the sum decreed by the court.  Litigation to him ended once he deposited the decretal sum with Counsel for the applicants and it would be unfair to reopen the case albeit by way of an appeal.  The application is clearly unmerited and it is dismissed with costs to the respondent.  It is so ordered.

Signed, dated and delivered via video link (Microsoft Teams) on this 3^rd day of December 2020.

E. N. MAINA

JUDGE