1. I have considered the grounds in the Notice of Motion Application dated 9th August 2023 together with the supporting affidavit sworn on even date and the reply in opposition to the same set out in the replying affidavit sworn 28 August 2023.
2. The Application seeks a discretionary remedy of the court to allow and appeal filed out of time.
3. Counsel submitted that the reason for the delay was because the appellant was sickly, however the affidavit does not contain a doctor’s note to that effect to show that she was unwell over the period of time.
4. He submitted that the appeal ought to have been filed before 27th February 2024, and that the present Application for enlargement of time is dated 9th August, 2024. Accordingly, the application is filed 6 months after the deadline.
5. The applicable law is found at Section 79G of the Civil Procedure Act, and the same is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited.
6. 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:
7. The import of the same 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. In MUGO & OTHERS VS. WANJIRU & ANOR [1970] EA 482 the court stated as follows:-
“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularised before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”
8. The appeal has not been regularized the present matter. I note that the Memorandum of Appeal has not been filed to date. However, a draft has been attached.
9. Further, the Court of Appeal in THUITA MWANGI V KENYA AIRWAYS LTD [2003] eKLR provided some of the factors to be considered in the exercise of this discretion. They include the following:
i) The period of delay;
ii) The reason for the delay;
iii) The arguability of the appeal;
iv) The degree of prejudice which could be suffered by the if Respondent the extension is granted;
v) The importance of compliance with time limits to the particular litigation or issue; and
vi) The effect if any on the administration of justice or public interest if any is involved.
10. I have considered the above, and to my mind, a delay of 6 months is inordinate given that the matter emanates from the small claims court. The purpose of that particular court is to expedite matters falling within its pecuniary jurisdiction given the long delays arising from the lower courts.
11. Further, the judgment the appeal is being preferred arises out of default of appearance. This indicates delay on the part of the applicant in the small claims court, even at that time, and it would appear to me that there is a pattern of delay on the part of the applicant.
12. I am not persuaded that the reasons for the delay have been sufficiently explained.
13. Based on the reasons set out above, I find that the application is without merit and the same is dismissed with cost.