Introduction and Background
1. Before court is the application dated 16/7/2024 brought under sections 1A, 1B and 79G of the Civil Procedure Act as well as Orders 42 and 51 of the Civil Procedure Rules. The applicant seeks enlargement of time to file her appeal out of time. She also seeks to have the memorandum of appeal dated 16/7/2024 deemed to be properly on record.
2. The application is supported by the affidavit sworn by the appellant CORALIE PIRON as well as the submissions dated 29/11/2024. It is the appellants case that on 18/7/2023, the Magistrate’s Court (Hon. P.K. Rotich) delivered a ruling allowing the respondent’s application and staying the proceedings pending arbitration. However, the court did not provide reasons for its decision, only announcing the outcome, which prevented the appellant’s advocates from preparing a memorandum of appeal.
3. After the ruling, the appellant’s advocates wrote to the Court Administrator on 21/7/2023, requesting certified copies of the ruling and proceedings. The court delayed and only provided them on 25/6/2024, after 340 days. The appellant states that the certificate of delay confirmed the delay was caused by the court’s administrative processes. As a result, the appellant could not file the appeal within the required timeframe but argues that the intended appeal has merit and that it is in the interest of justice that the application is allowed.
4. The appellant maintains that he will suffer irreparable loss if denied the opportunity to be heard, while the respondent will not be prejudiced. The appellant asserts that the application was filed without undue delay, as it was brought immediately after receiving the certified ruling and proceedings.
5. The respondent opposed the application vide grounds of opposition and submissions dated 28/11/2024. The respondent states that the appellant’s advocate has not provided any material or cogent reason for not filing an appeal within the stipulated timelines. It argues that the appellant’s application is merely an afterthought, given that nearly a year has passed since the ruling in CMCC 8799 of 2018 was delivered on 18/7/2023.
6. Additionally, the respondent maintains that granting the appellant’s request would result in significant prejudice against it. The respondent emphasizes that the delay in bringing the present application is unreasonable. It argues that the application lacks merit, is frivolous, and amounts to an abuse of the court process.
Analysis and Determination
7. The application was canvassed by way of written submissions which I have carefully considered alongside the application and response. The main issue for determination is whether the court should exercise its discretion to grant the appellant leave to file his appeal out of time. Section 79G of the Civil Procedure Act states in this regard:-
“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 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.” (emphasis mine).
8. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR further elaborated the principles applicable in an application for leave to appeal out of time. The court stated that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.”
9. The record in the present matter confirms that the ruling in the trial court was delivered on 18/7/2023, and the appellant promptly requested the certified copy of the ruling and proceedings on 21/7/2023. These were not provided until 25/6/2024, approximately 340 days later. The appellant has produced a certificate of delay issued on 15/7/2024 confirming that the delay was caused by the court’s administrative processes.
10. Applying the principles afore stated, I find that the appellant has satisfactorily explained the delay, which was caused by matters beyond her control. The appellant has also demonstrated that she filed the present application without undue delay once the certified ruling and proceedings were availed to her counsels.
11. The respondent argues that granting application will cause undue prejudice to it. However, it has not demonstrated how it stands to suffer any specific or irreparable harm if the appeal is heard on its merits. The right to be heard is a fundamental principle of justice, and denying a party the opportunity to ventilate their grievances on appeal should only be done in exceptional circumstances.
12. Further, the memorandum of appeal annexed to the application demonstrates that the intended appeal raises arguable points. I am persuaded that the appellant has made out a case for the grant of the orders sought.
Disposition
13. Accordingly, the application dated 16/7/2024 is allowed. The time for filing the appeal is hereby extended and as such, the Memorandum of Appeal dated 16/7/2024 shall be deemed to be properly on record upon payment of the requisite filing fees. The costs of this application shall await the outcome of the appeal.
DATED, SIGNED AND DELIVERED IN MOMBASA
THIS 17TH DAY OF APRIL 2025
F. MUGAMBI
JUDGE
1. Before court is the application dated 16/7/2024 brought under sections 1A, 1B and 79G of the Civil Procedure Act as well as Orders 42 and 51 of the Civil Procedure Rules. The applicant seeks enlargement of time to file her appeal out of time. She also seeks to have the memorandum of appeal dated 16/7/2024 deemed to be properly on record.
2. The application is supported by the affidavit sworn by the appellant CORALIE PIRON as well as the submissions dated 29/11/2024. It is the appellants case that on 18/7/2023, the Magistrate’s Court (Hon. P.K. Rotich) delivered a ruling allowing the respondent’s application and staying the proceedings pending arbitration. However, the court did not provide reasons for its decision, only announcing the outcome, which prevented the appellant’s advocates from preparing a memorandum of appeal.
3. After the ruling, the appellant’s advocates wrote to the Court Administrator on 21/7/2023, requesting certified copies of the ruling and proceedings. The court delayed and only provided them on 25/6/2024, after 340 days. The appellant states that the certificate of delay confirmed the delay was caused by the court’s administrative processes. As a result, the appellant could not file the appeal within the required timeframe but argues that the intended appeal has merit and that it is in the interest of justice that the application is allowed.
4. The appellant maintains that he will suffer irreparable loss if denied the opportunity to be heard, while the respondent will not be prejudiced. The appellant asserts that the application was filed without undue delay, as it was brought immediately after receiving the certified ruling and proceedings.
5. The respondent opposed the application vide grounds of opposition and submissions dated 28/11/2024. The respondent states that the appellant’s advocate has not provided any material or cogent reason for not filing an appeal within the stipulated timelines. It argues that the appellant’s application is merely an afterthought, given that nearly a year has passed since the ruling in CMCC 8799 of 2018 was delivered on 18/7/2023.
6. Additionally, the respondent maintains that granting the appellant’s request would result in significant prejudice against it. The respondent emphasizes that the delay in bringing the present application is unreasonable. It argues that the application lacks merit, is frivolous, and amounts to an abuse of the court process.
Analysis and Determination
7. The application was canvassed by way of written submissions which I have carefully considered alongside the application and response. The main issue for determination is whether the court should exercise its discretion to grant the appellant leave to file his appeal out of time. Section 79G of the Civil Procedure Act states in this regard:-
“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 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.” (emphasis mine).
8. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR further elaborated the principles applicable in an application for leave to appeal out of time. The court stated that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a) Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e) Whether there will be any prejudice suffered by the respondent if the extension is granted;
f) Whether the application has been brought without undue delay.”
9. The record in the present matter confirms that the ruling in the trial court was delivered on 18/7/2023, and the appellant promptly requested the certified copy of the ruling and proceedings on 21/7/2023. These were not provided until 25/6/2024, approximately 340 days later. The appellant has produced a certificate of delay issued on 15/7/2024 confirming that the delay was caused by the court’s administrative processes.
10. Applying the principles afore stated, I find that the appellant has satisfactorily explained the delay, which was caused by matters beyond her control. The appellant has also demonstrated that she filed the present application without undue delay once the certified ruling and proceedings were availed to her counsels.
11. The respondent argues that granting application will cause undue prejudice to it. However, it has not demonstrated how it stands to suffer any specific or irreparable harm if the appeal is heard on its merits. The right to be heard is a fundamental principle of justice, and denying a party the opportunity to ventilate their grievances on appeal should only be done in exceptional circumstances.
12. Further, the memorandum of appeal annexed to the application demonstrates that the intended appeal raises arguable points. I am persuaded that the appellant has made out a case for the grant of the orders sought.
Disposition
13. Accordingly, the application dated 16/7/2024 is allowed. The time for filing the appeal is hereby extended and as such, the Memorandum of Appeal dated 16/7/2024 shall be deemed to be properly on record upon payment of the requisite filing fees. The costs of this application shall await the outcome of the appeal.
DATED, SIGNED AND DELIVERED IN MOMBASA
THIS 17TH DAY OF APRIL 2025
F. MUGAMBI
JUDGE