1. Before this court for consideration is a notice of motion application dated 6th March 2024 brought under Sections 1A, 1B, 3A & 79G of the Civil Procedure Act seeking orders that leave to appeal out of time against the whole judgment of Hon. Edwin Mulochi SRM, delivered on 30th January 2024 at Kabarnet in Kabarnet SPM ELC Suit No. 22 of 2019 be granted: that the Memorandum of Appeal annexed be deemed as duly filed and that costs be provided for.
2. The application is premised on the grounds on its face and the supporting affidavit of Magdalene Jeptumo Keitany sworn on 6th March, 2024. She deposes that upon delivery of the judgment on 30th January 2024 in favour of the respondent, she was dissatisfied and opted to file an appeal; that she requested for the typed judgment and obtained it on 28th February, 2024; that she instructed her advocate on 2nd March 2024 to file an appeal but was informed that time had lapsed. She deposes that the delay of four days is not so inordinate as to be inexcusable; that this court has the jurisdiction to enlarge time to file the appeal; that the respondent will not suffer any prejudice if the application is allowed and prays that the application be allowed in the interest of justice.
3. The application is not opposed.
4. I have considered the application, the grounds and the affidavit in support and l find the sole issue for determination to be whether the applicant has made up a case for being granted the orders sought.
5. Section 79 G of the Civil Procedure Act provides that appeals from the subordinate courts must be filed within a period of 30 days from the date of decree or order from which the appeal lies. The proviso to that section, however allows for extension of time to appeal where good and sufficient cause has been shown.
6. The applicant has explained the circumstances that led to filing of this application. She stated that it took time for her to obtain a certified copy of the judgment; that by the time she gave instructions to her advocate to file the appeal, time had lapsed.
7. I have perused the court record and noted that there is no correspondence to or from the court other than the letter dated 5th March 2024 from Geoffrey Otieno Advocate requesting the Executive Officer Kabarnet Law Courts for certified copies of the typed proceedings, which letter was written two years after delivery of the judgment. No satisfactory explanation has been given for the delay of over two years and no good or sufficient cause has been shown. Equity aids the vigilant and not the indolent.
8. Consequently, I find the application without merit and I dismiss it with no orders on costs as it was undefended.
9. Orders accordingly.
Ruling dated, signed and delivered at Iten this 29th day of May, 2024.
L. N. WAITHAKA
JUDGE
Ruling read and delivered electronically in the presence of:-
N/A for the applicant
Mr. Muraya for the respondent
Court Asst.: Christine