This ruling is in respect of the Notice of Motion application brought by the applicant pursuant to the provisions of sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rule 2010. The application seeks for orders that:
- The applicant be granted leave to appeal out of time against the whole of the judgement of Hon. Melanie Ochieng SPM delivered on 2nd June 2024 in HAMISI MCL & E NO E001 OF 2021.
- The Memorandum of the Appeal annexed to the application be deemed as duly filed and served.
- The costs of the application be provided for.
The application was based on the grounds that the applicant has been unwell since the time she testified in court in the matter and that the respondent is unlikely to suffer any prejudice. That the applicant is likely be rendered destitute and suffer irreparable loss if the application is not allowed. That the delay is not inordinate or so great as to be inexcusable.
The application was supported by the averments in the Supporting Affidavit sworn by the applicant.
The application was opposed vide the averments in the Replying Affidavit sworn on 5th November 2024.
The application was urged by way of written submissions. It was submitted on behalf of the applicant vide the written submissions dated 27th December 2024 filed by the firm of Mukabi & Co Advocates that the grounds for grant of leave to appeal out of time as stated in the case of Leo Sila Mutiso vs Rose Hellen Wangeci Civil Appeal No 255 of 1997 and First America Bank of Kenya Limited vs Gulab P. Shah & others HCC No 2255 of 2000 to (2002) IEA 65 were:
- The explanation, if any, for the delay,
- the merits of the contemplated action; whether the appeal is arguable.
- whether or not the respondent can be adequately compensated in costs for any prejudice that may be suffered as a result of the exercise of discretion in favor of the applicant.
The explanation for delay in filing the appeal within the time provided for by law is that the applicant was indisposed. The applicant stated in the Supporting Affidavit that she was sick and could not reach her advocates to be able to institute the appeal within the time provided by law.
On behalf of the Respondent it was submitted vide the written submissions filed by the firm of A. B. L. Musiega Advocates, inter alia, that the court had not been provided with solid reasons and evidence of sickness to enable the court exercise its discretion in favour of the applicant. That the applicant was served with decree dated 31st May 2024 hence it is not true that she only learnt of the judgement in early November 2024.
I have considered the application, the ground in opposition thereof and the submissions made. The power for the court to grant leave to file appeal out of time is provided for in the proviso to section 79G of the Civil Procedure Act which states; -
“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”
I find that the applicant has shown sufficient cause for failure to file the appeal within time and that in the interest of justice the applicant be given a chance to exercise her right of appeal. The Respondent shall be compensated by way of costs.
The application is therefore hereby allowed as follows:
- The applicant is hereby granted leave to file appeal out of time.
- The appeal be filed and Memorandum of Appeal be served upon the respondent within 14 days hereof.
- Costs of the application to the Respondent.
Ruling, dated and signed at Vihiga, read virtually this 14th day of February 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi- Court Assistant.
Rabote for the Applicant.
Malanda for the Respondent.