1.This ruling is in respect to the Notice of Motion dated 12/6/2023 (the application) filed by Andrew Ogola Maganda (the applicant) seeks the following orders: -1.That the applicant be granted leave to appeal out of time against the judgement of Hon. Kamau dated 5/5/2020 in PMCC No. 184 of 2016.2.That the memorandum of appeal annexed thereto and marked X be deemed as duly filed upon payment of the requisite fees.3.Costs of this application be provided for.
2.The grounds upon which the application is based, are found in the body of the application and the supporting affidavit of Ezekiel Oduk, Counsel for the applicant. Counsel deponed that the judgement was delivered on 5/5/2020 without notice and in the absence of Counsel; that Counsel was unable to access court in 2020 due to the COVID pandemic and got to know of the outcome in 2023; that Counsel has since communicated this information to his client who has now instructed him to appeal on his behalf; that they have now perused the proceedings and the judgement secured the same and prepared the memorandum of appeal ready for filing but the time for lodging the appeal has now elapsed.
3.Counsel urged this court to allow this application as no prejudice will be occasioned to the respondent the circumstances of the delay being beyond the control of the respondent; that the judgement raises serious grave misdirection which this court has too look into.
4.The application was not opposed despite the respondent being served as evidenced in the return of service dated 4/7/2023.
5.I have considered the application, the grounds thereon and the supporting affidavit.
6.An appeal from the subordinate should be filed within 30 days from the date of judgement. Section 79G of the Civil Procedure Act provides: -
7.Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for preparation and delivery to the appellant of a copy of the decree or order:
8.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."
9.Further to the provisions of Section 79G (supra), the court may admit an appeal out of time upon application by a party and upon the court being satisfied that the party had good and sufficient cause for not filing the appeal within time.
10.In determining whether leave to appeal out of time should be granted, I am guided by the binding decision of the Court of Appeal in Edith Gichungu Koine Vs Stephen Njagi Thoithi (2014) eKLR Odek JA rendered himself as thus:-
11.Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”
12.The extension of time is not an automatic right. It is an exercise of the court’s discretion. In Leo Sila Mutiso vs Rose Hellen Wangari Mwangi Nairobi Appeal 255 of 1997 the court, when considering the exercise of discretion to extend time, had this to say:-
13.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.”
14.On the period of delay, Section 79G of the Civil Procedure Act provides that appeals from the subordinate court should be filed within thirty (30) days from the date of the judgement and/or order. The applicant alleged that the impugned judgement was delivered on 5/5/2020 in the absence of both parties. The appeal ought to have been filed on or before 5/6/2020. The instant application was filed on 12/6/2023. This is a period of approximately 3 years from the lapse of the 30 days period.
15.The applicant’s reason for the delay is that the judgement was delivered in their absence, they had no notice of the outcome of the judgement until January 2023. Counsel also contended that due to the COVID pandemic, he could not access the court.
16.The Supreme Court emphasized the need to explain the delay in applications of filing appeals out of time in County Executive of Kisumu vs. County Government of Kisumu & 8 others (2017) eKLR as follows:-
17.While this court agrees that during the period of the COVID - 19 pandemic the courts were inaccessible, from March 2020 to early January 2021. Normal court operations had already resumed from early January 2021 and courts outside Nairobi already had physical access. In addition, Counsel deposed that he came to know of the decision in early 2023. This application was filed 6 months later. The application in my view was not filed timeously from the time when Counsel got to know of the judgement. I find that the explanation falls short of being satisfactory in light of the length of the delay. The applicant had the duty to find out when the judgement was delivered in the circumstances. I find that the respondent will suffer prejudice if this court was to reopen a matter which was concluded 3 years after the applicant’s right of appeal had lapsed.
18.I find that the applicant has not demonstrated sufficiently the reasons for the delay to warrant this court to exercise its discretion of extending time to file the appeal out of time. Litigation must come to an end.
19.In the premise, I dismiss the application dated 12/6/2023 with no orders as to costs.