1.Joseph Nyaagah Kihara, the applicant filed Notice of Motion application dated 17th February, 2021 for orders that:-
- Leave be granted to file an appeal out of time.
- The memorandum be deemed as duly filed and served.
- There be stay of execution of the trial court’s judgment pending the hearing and determination of the appeal.
2.The application is opposed by the four respondents through the affidavit of RUKIA OSIR OMARI the 1st respondent.
3.Section 79G of the Civil Procedure Act requires an appeal from the subordinate court be filed within 30 days of the date of judgment or order. That Section is in following terms:-
4.Although the court has discretion to extend time to admit an appeal out of time such a discretion is exercised within principles of law. This indeed, is what was stated in the case of PAUL NJAGE NJERU VS. KARIJA K. MUGAMBI (2021) eKLR as follows:-
5.The length of delay in filing the appeal by the applicant was over two months. That in my view was inordinate delay. It needed to be explained.
6.The reason for delay in filing the appeal is captured in the following paragraphs of the applicant’s affidavit.
7.The first paragraph above without any supporting document states that an advocate called Lawrence Jaoko failed to attend the judgment of the trial court on 3rd December, 2020. The second paragraph above certainly does not make it clear whether Lawrence Jaoko was an employed associate of the Law Firm of Masire & Mogusu Advocates or he simply was holding their brief. On the whole, the two paragraphs above fail to state why, if indeed Lawrence Jaoko did not attend the judgment other advocates of that Law Firm of Masire & Mogusu did not attend or at least follow up to inquire the outcome of that judgment. The reason given for delaying to file the appeal is devoid of merit.
8.The applicant referred in the affidavit in support of the application to a draft memorandum of appeal, but there is no such document attached to the said affidavit in the court file. There is therefore no way of determining whether the proposed appeal has any chance of success.
9.The application for leave to appeal out of time and for stay of execution pending the appeal will, in my view prejudice the respondents who successfully obtained judgment. This is because the applicant in seeking leave to appeal out of time and stay of execution did not intimate that the respondents would be unable to refund the trial court’s judgment out of the proposed appeal was successful. There is therefore no basis presented by the applicant why, there should be stay of execution of the trial court’s decree.
10.I am also of the view that in order for the court to exercise its discretion in allowing an appeal to be admitted out of time as provided under Section 79G of the Civil Procedure Act, there must be of necessity, an appeal already filed and on record. It is such existing appeal that the court acts upon to permit a party to have it admitted out of time. A careful consideration of Section 79G reveals that the court is granted discretion to admit an appeal filed out of time.
11.In view of that discretion I cite with approval the holding of Justice Emukule in the case of GERALD M’LIMBINE VS. JOSEPH KANGANGI (2008) eKLR:-It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”
12.In the end, not only has the applicant failed to show sufficient cause for failing to file the appeal out of time, but the applicant’s application is also misconceived in view of the statutory provision in Section 79G of the Civil Procedure Act.
13.The Notice of Motion dated 17th February, 2021 is dismissed with costs. The temporary stay of execution granted in respect to Thika CMCC No. 590 of 2014 is hereby vacated.
14.This file shall henceforth be closed.