1. Before me is a Notice of Motion application dated 20th February 2024. Vide the said application the Applicant seeks the following orders:-
a) Spent;
b) Spent;
c) That a stay of execution in Civil Suit No. E128 of 2021 be granted pending the hearing and determination of this application;
d) The court be pleased to grant leave to appeal out of time against the judgement made by the Hon.L. T Lewa on the 24th of November 2023 in Kwale Civil Suit No. E128 of 2021;
e) The said leave do operate as a stay of all proceedings;
f) The costs of this application be provided for; and
g) Any other orders that meets the ends of justice.
2. The application is based on the grounds stated therein and also on the Supporting Affidavit of Caroline Njogu, the Applicant’s advocate. She stated that the judgement of the trial court was delivered on 24 November 2023 and that they have, on several occasions, sent their representative to follow up on the same in vain. On 12th February 2024, they received an email from the Respondent’s advocates demanding payment. Upon receipt of the said email they sent their clerk to the registry to get a copy of the said judgement.
3. Further, they sought the instructions of the Appellant, who, being dissatisfied with the judgment, instructed them to appeal against it. She deposed that the Appellant couldn’t file an appeal without first seeing the judgment. She urged the court to allow the Appellant to file an appeal out of time.
4. In response the Respondent filed Grounds of Opposition dated 29th February 2024 opposing the application on grounds, inter alia, that the application is frivolous, vexatious, unmerited, bad in law, incompetent and otherwise a gross abuse of the court process; that the application as drawn does not satisfy the test for grant of leave to file appeal out of time and stay of execution pending appeal in respect of a money decree since the appellant has failed to offer any security; that the judgement in Kwale CMCC No.E128 of 2021 was delivered on 24th November 2023 and therefore the Applicant is guilty of laches and inordinate delay as the application has been brought more than three (3) months since judgment was delivered; that the application herein has been filed after unreasonable delay and the applicants have failed to provide sufficient reasons for the delay; that no substantial loss would be occasioned to the Appellant if she paid the decretal amount; that the applicant’s intended appeal is unmerited and has no or no reasonable chances of succeeding since the appellant has admitted in ground no.7 of the Memorandum of Appeal that she owes the decretal sum to the respondent; that the application is brought with mala fides solely to delay and/or frustrate the Respondent from enjoying the fruits of his otherwise valid judgement; and, that the said application is ill conceived and is otherwise an abuse of the process and ought to be accordingly dismissed with costs to the Respondent.
5. The Applicant, through her advocates, J.Thongori & Company Advocates, filed her written submissions dated 15th March 2024.
6. Counsel submitted two issues for determination: whether the appellant met the threshold for grant of leave to appeal out of time and who bears the costs.
7. On the first issue, counsel submitted that the applicant had met the threshold for a grant of leave to file an appeal out of time and should be given the opportunity to be heard. The delay was caused by the court, which failed to render judgment on time, and thus, the Applicant cannot be said to be guilty of laches.
8. Counsel submitted that discretion to extend time must be exercised within the law. Counsel referred to the case of Omar Shuria vs Marian Rashe Yafar (Civil Application No 107 of 2020) (UR) and Nicholas Kiptoo Arap Korir Salat vs IEBC 2014; Sup Ct. Application No.16 of 2014.
9. On the second issue, counsel submitted that the Respondent bears the costs of this suit since he is the one who is in breach of the contract between the parties herein.
10. I have considered the application, the response thereto, and the submissions by the Applicant’s counsel. Has the Applicant made a case for the grant of the orders that she seeks?
11. The court, in the case of Charles N. Ngugi vs ASL Credit Limited [2022] eKLR stated:-
“The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion just like any other exercise of discretion by the court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi vs Kenya Airways Limited [2003] eKLR. They include the following:-
a. The period of delay;
b. The reason for the delay;
c. The arguability of the appeal;
d. The degree of prejudice which could be suffered by the if Respondent the extension is granted;
e. The importance of compliance with time limits to the particular litigation or issue; and
f. The effect if any on the administration of justice or public interest if any is involved.
12. Further in the case of MFI Document Solutions Ltd v Paretto Printing Works Limited [2021] eKLR the court stated:-
“The applicant’s request to file appeal out of time may only be accepted if it satisfies the court that it had good and sufficient cause for not filing the appeal out of time. The supreme court of Kenya sitting at Kisumu in the case of County Executive of Kisumu vs County Government of Kisumu & others [2017] eKLR while relying to its decision in the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others Application No. 16 of 2014 [2014] eKLR the Hon. Judges reiterated the considerations to be made in such a case to be as follows:
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
13. In the case of Annah Mwihaki Wairuru vs Hannah Wanja Wairuru [2017] eKLR, quoting with approval the holding in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997) (UR) the court delivered itself as follows:-
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
14. The Applicant blames the trial Court for his predicament. In her view, the said Court failed to avail the judgment being appealed against on time. It was also contended that, through her advocates, the Applicant, on several occasions, sought to be given a copy of the written judgment in vain and that she only obtained the same on the 13th of February 2024, whereupon her advocates filed the application herein on the 20th of February 2024.
15. The Applicant annexed a letter dated 27th November 2023 to the Kwale Law Courts requesting for a copy of the typed judgment in Civil Suit No. E128 of 2021. The Court, in so far as it failed to avail the typed judgment within a reasonable period of time, was at fault. In the circumstances, it does appear to me that the Applicant has a good reason for having delayed in filing the appeal.
16. The upshot of the foregoing is that I find merit in the application. Leave to appeal out of time is hereby granted. I direct that the appeal be filed within 14 days of the date hereof, failing which the appeal granted herein shall lapse. I decline to grant stay of execution pending appeal. The appeal will be mentioned before me on 25th June 2024 for directions.
17. The costs of this application shall be costs in the cause.
18. Orders accordingly.
Dated and signed at Mombasa this 9th day of May 2024.
a) Spent;
b) Spent;
c) That a stay of execution in Civil Suit No. E128 of 2021 be granted pending the hearing and determination of this application;
d) The court be pleased to grant leave to appeal out of time against the judgement made by the Hon.L. T Lewa on the 24th of November 2023 in Kwale Civil Suit No. E128 of 2021;
e) The said leave do operate as a stay of all proceedings;
f) The costs of this application be provided for; and
g) Any other orders that meets the ends of justice.
2. The application is based on the grounds stated therein and also on the Supporting Affidavit of Caroline Njogu, the Applicant’s advocate. She stated that the judgement of the trial court was delivered on 24 November 2023 and that they have, on several occasions, sent their representative to follow up on the same in vain. On 12th February 2024, they received an email from the Respondent’s advocates demanding payment. Upon receipt of the said email they sent their clerk to the registry to get a copy of the said judgement.
3. Further, they sought the instructions of the Appellant, who, being dissatisfied with the judgment, instructed them to appeal against it. She deposed that the Appellant couldn’t file an appeal without first seeing the judgment. She urged the court to allow the Appellant to file an appeal out of time.
4. In response the Respondent filed Grounds of Opposition dated 29th February 2024 opposing the application on grounds, inter alia, that the application is frivolous, vexatious, unmerited, bad in law, incompetent and otherwise a gross abuse of the court process; that the application as drawn does not satisfy the test for grant of leave to file appeal out of time and stay of execution pending appeal in respect of a money decree since the appellant has failed to offer any security; that the judgement in Kwale CMCC No.E128 of 2021 was delivered on 24th November 2023 and therefore the Applicant is guilty of laches and inordinate delay as the application has been brought more than three (3) months since judgment was delivered; that the application herein has been filed after unreasonable delay and the applicants have failed to provide sufficient reasons for the delay; that no substantial loss would be occasioned to the Appellant if she paid the decretal amount; that the applicant’s intended appeal is unmerited and has no or no reasonable chances of succeeding since the appellant has admitted in ground no.7 of the Memorandum of Appeal that she owes the decretal sum to the respondent; that the application is brought with mala fides solely to delay and/or frustrate the Respondent from enjoying the fruits of his otherwise valid judgement; and, that the said application is ill conceived and is otherwise an abuse of the process and ought to be accordingly dismissed with costs to the Respondent.
5. The Applicant, through her advocates, J.Thongori & Company Advocates, filed her written submissions dated 15th March 2024.
6. Counsel submitted two issues for determination: whether the appellant met the threshold for grant of leave to appeal out of time and who bears the costs.
7. On the first issue, counsel submitted that the applicant had met the threshold for a grant of leave to file an appeal out of time and should be given the opportunity to be heard. The delay was caused by the court, which failed to render judgment on time, and thus, the Applicant cannot be said to be guilty of laches.
8. Counsel submitted that discretion to extend time must be exercised within the law. Counsel referred to the case of Omar Shuria vs Marian Rashe Yafar (Civil Application No 107 of 2020) (UR) and Nicholas Kiptoo Arap Korir Salat vs IEBC 2014; Sup Ct. Application No.16 of 2014.
9. On the second issue, counsel submitted that the Respondent bears the costs of this suit since he is the one who is in breach of the contract between the parties herein.
10. I have considered the application, the response thereto, and the submissions by the Applicant’s counsel. Has the Applicant made a case for the grant of the orders that she seeks?
11. The court, in the case of Charles N. Ngugi vs ASL Credit Limited [2022] eKLR stated:-
“The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion just like any other exercise of discretion by the court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi vs Kenya Airways Limited [2003] eKLR. They include the following:-
a. The period of delay;
b. The reason for the delay;
c. The arguability of the appeal;
d. The degree of prejudice which could be suffered by the if Respondent the extension is granted;
e. The importance of compliance with time limits to the particular litigation or issue; and
f. The effect if any on the administration of justice or public interest if any is involved.
12. Further in the case of MFI Document Solutions Ltd v Paretto Printing Works Limited [2021] eKLR the court stated:-
“The applicant’s request to file appeal out of time may only be accepted if it satisfies the court that it had good and sufficient cause for not filing the appeal out of time. The supreme court of Kenya sitting at Kisumu in the case of County Executive of Kisumu vs County Government of Kisumu & others [2017] eKLR while relying to its decision in the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others Application No. 16 of 2014 [2014] eKLR the Hon. Judges reiterated the considerations to be made in such a case to be as follows:
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
13. In the case of Annah Mwihaki Wairuru vs Hannah Wanja Wairuru [2017] eKLR, quoting with approval the holding in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997) (UR) the court delivered itself as follows:-
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
14. The Applicant blames the trial Court for his predicament. In her view, the said Court failed to avail the judgment being appealed against on time. It was also contended that, through her advocates, the Applicant, on several occasions, sought to be given a copy of the written judgment in vain and that she only obtained the same on the 13th of February 2024, whereupon her advocates filed the application herein on the 20th of February 2024.
15. The Applicant annexed a letter dated 27th November 2023 to the Kwale Law Courts requesting for a copy of the typed judgment in Civil Suit No. E128 of 2021. The Court, in so far as it failed to avail the typed judgment within a reasonable period of time, was at fault. In the circumstances, it does appear to me that the Applicant has a good reason for having delayed in filing the appeal.
16. The upshot of the foregoing is that I find merit in the application. Leave to appeal out of time is hereby granted. I direct that the appeal be filed within 14 days of the date hereof, failing which the appeal granted herein shall lapse. I decline to grant stay of execution pending appeal. The appeal will be mentioned before me on 25th June 2024 for directions.
17. The costs of this application shall be costs in the cause.
18. Orders accordingly.
Dated and signed at Mombasa this 9th day of May 2024.