REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

 AT NAIROBI

MISC.CIVIL APPLICATION NO. E366 OF 2021

PAUL MUTINDA MUSEMBI….........................…................…………………..APPLICANT

 VERSUS

CLEMENT ARWINGS OBADO.......……........…………………........... 1^ST RESPONDENT

SUSAN OGOLLA……………………………………………….....…… 2^ND RESPONDENT

MARY AKINYI OBADO……………………………………………… 3^RD RESPONDENT

RULING

This ruling relates to the applicant’s Notice of Motion dated 26^th July, 2021 seeking the following orders;

1. THAT this Honourable court be pleased to allow the applicant to appeal the judgment in Nairobi CMCC No. 732 of 2016 delivered on the 24^th May 2019 out of time. 

2. THAT upon grant of leave to appeal out of time, the Memorandum of Appeal lodged herein be deemed as duly filed

3. THAT the costs of this application be in the cause. 

The application is premised on the grounds on the face of the application and the supporting affidavit of PAUL MUTINDA MUSEMBI, the applicant herein sworn on 26^th July, 2021. The applicant’s case is that he wishes to appeal against the judgement/decree of Hon. Ocharo (SPM) delivered on 24^th May, 2019 in Milimani Commercial Court Case No. 732 of 2016 but the time to file the appeal has lapsed.  It is contended that the delay in filing the appeal was not intentional but was caused by his previous advocates who failed to follow his instructions to file the appeal. The applicant contends that his intended appeal is arguable and meritorious and it will therefore be rendered nugatory if the application is not granted. The applicant reiterated the averments made in his supporting affidavit in a further affidavit sworn on 4^th November, 2021.

In his submission the applicant while making reference to the case of JAI ENGINEERING WORKS VSVALABHAI KASANJI PATEL - MOMBASA HIGH COURT MISC. APPLICATION NO.4 OF 1981 has urged this court to find his explanation reasonable and grant the orders sought since the respondents would not be prejudiced. The applicant submits that the court should take judicial notice of the scaling down of court operations in response to the covid-19 pandemic and the resultant effects it had on court operations. He further urges the court to allow him defend his appeal which he argues is arguable with a high chances of success. It is the applicant’s further submissions that the rules of procedure are handmaiden of justice and this court ought to uphold substantive justice over procedural technicalities. In support thereof, the applicant cited the cases of JALDESA TUKE DABELO VS IEBC & ANOTHER (2015) eKLR, RAILA ODINGA AND 5 OTHERS -VS- IEBC & 3 OTHERS (2013) eKLR, PATRICIAL CHEROTICH SAWE VS IEBC & 4 OTHERS (2015) eKLR.

In opposition, the 1^st respondent filed grounds of opposition dated 25^th October, 2021. According to the 1^st respondent, the present application is an abuse of the court process, frivolous and vexatious and should be dismissed. The 1^st respondent states that the application which has concealed material facts is brought as an afterthought and without reasonable grounds way after judgement was entered on 24^th May, 2019 and the applicant is guilty of laches. Moreover, the 1^st defendant argue that the application is fundamentally defective having been brought under wrong provisions of the law.

Analysis and determination;

Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that:-

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.

The applicant’s request to file appeal out of time may only be accepted if he satisfies the court that he had good and sufficient cause for not filing the appeal within the permitted time. The supreme court of Kenya in the case of NICHOLAS KIPTOO ARAP KORIR SALAT VS IEBC & 7 OTHERS APPLICATION NO. 16 OF 2014 [2014] eKLR stated the considerations to be made in such an application as follows:-

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. Whether the 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.”

The same principles were enunciated in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi (Civil Application No. Nai.255 of 1997) (unreported) the Court of Appeal held that:

“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.”

Accordingly, for purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for extension of time to appeal under the following parameters:-

i) Whether there is a good and reasonable explanation for the delay;

ii) Whether the application has been brought without undue delay;

iii) Whether the proposed appeal is arguable, and

iv) Whether any prejudice will be suffered by Respondent.

It is not disputed that the judgment in the lower court was delivered on 24^th May, 2019 and that this application was filed on 30^th June, 2021 which was way beyond the 30 days stipulated in section 79G of the Civil Procedure Act. The applicant has given an explanation that the delay was occasioned by the delay in issuance of the lower court certified proceedings, judgement and decree due to the downscaling of court operations owing to the Covid 19 pandemic. The applicant has however not tendered any evidence to show that he has been actively following up on the same with the registry two years later.

Judgment of the trial court was delivered on 24^th May, 2019.  The current application was filed on 30^th July, 2021.  This is a period of over two (2) years.  The applicant contends that he instructed his advocate to pursue certified copies of the proceedings, judgment and decree.  There is no single document annexed to the supporting affidavit that can confirm that allegation.  The proceedings and judgment have not been attached.  There is nothing to show that in the last two years before filing the application the applicant was actively pursuing the matter.  The advent of Covid-19 pandemic did not completely close down the court operations. The long delay has not been explained to the satisfaction of this court.

There is delay which is admitted. I am far from being convinced that the delay in filing the instant application has been convincingly explained. It therefore matters not that the intended appeal is arguable; or that no prejudice will be suffered by the respondent. The delay is inexcusable and the court’s discretion cannot be exercised in favour of the applicant. The upshot is that I find no merit in the applicant’s application dated 26^th July, 2021 and the same is hereby dismissed with costs to the respondent.

Dated and signed at Nairobi this 14^th day of March, 2022.

...............................

S. CHITEMBWE

JUDGE