Background
1. Before the court is the application dated 18th May 2023 seeking leave to file an appeal out of time, against the judgment of the Senior Resident Magistrate’s Court delivered on 31st March 2023. The application is supported by the annexed affidavit of the applicant sworn on even date.
2. The applicant had initially filed a claim at the small claims court which was dismissed, as a result of which he filed an application for review of the judgment. It is this application that was subject of the impugned ruling of 31st March 2023 that has necessitated this application for expansion of time to file an appeal out of time. This court therefore notes that the correct position is that what was delivered was a ruling and not a judgment, as submitted by the respondent.
3. The applicant alleges that the Court’s judgment (which this court has established was a ruling), was meant to be sent to the parties’ emails and this was not done, causing delay in the filing of the appeal by the applicant.
4. The application is opposed vide a replying affidavit sworn by DANIEL NDABA, Senior Legal Counsel with the respondent company.
Analysis and determination
5. Section 95 of the Civil Procedure Act is instructive of the discretion of this Court in enlarging time for the performance of any act. This discretion is further buttressed under Order 50 rule 6 of the Civil Procedure Rules which provides as follows: -
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.
6. The question now moves to whether the applicant is deserving of the orders sought. In determining this application which seeks an extension of time, I am cognisant of the parameters for consideration set by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR.
7. The following guiding principles were established by the Court:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay;
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
viii. The degree of prejudice to the respondent if the application is granted
8. On the ground that the judgment or ruling of the court was supposed to be sent to the email addresses of the parties, the applicant has not attached any such evidence to prove this averment neither have they attached evidence to show that they wrote to court seeking to follow up on the ruling. The applicant claims to have been bereaved but the allegation is also not supported by evidence.
Disposition
9. The applicant has not made out a case for grant of the orders and as such the application is dismissed with costs to the respondents.
1. Before the court is the application dated 18th May 2023 seeking leave to file an appeal out of time, against the judgment of the Senior Resident Magistrate’s Court delivered on 31st March 2023. The application is supported by the annexed affidavit of the applicant sworn on even date.
2. The applicant had initially filed a claim at the small claims court which was dismissed, as a result of which he filed an application for review of the judgment. It is this application that was subject of the impugned ruling of 31st March 2023 that has necessitated this application for expansion of time to file an appeal out of time. This court therefore notes that the correct position is that what was delivered was a ruling and not a judgment, as submitted by the respondent.
3. The applicant alleges that the Court’s judgment (which this court has established was a ruling), was meant to be sent to the parties’ emails and this was not done, causing delay in the filing of the appeal by the applicant.
4. The application is opposed vide a replying affidavit sworn by DANIEL NDABA, Senior Legal Counsel with the respondent company.
Analysis and determination
5. Section 95 of the Civil Procedure Act is instructive of the discretion of this Court in enlarging time for the performance of any act. This discretion is further buttressed under Order 50 rule 6 of the Civil Procedure Rules which provides as follows: -
Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.
6. The question now moves to whether the applicant is deserving of the orders sought. In determining this application which seeks an extension of time, I am cognisant of the parameters for consideration set by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR.
7. The following guiding principles were established by the Court:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay;
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
viii. The degree of prejudice to the respondent if the application is granted
8. On the ground that the judgment or ruling of the court was supposed to be sent to the email addresses of the parties, the applicant has not attached any such evidence to prove this averment neither have they attached evidence to show that they wrote to court seeking to follow up on the ruling. The applicant claims to have been bereaved but the allegation is also not supported by evidence.
Disposition
9. The applicant has not made out a case for grant of the orders and as such the application is dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 31ST DAY OF MAY 2024
F. MUGAMBI
JUDGE