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JudgmentMESHACK MULI KILUNGU VS BENSON MUTHINI MUNGUTI5 min read

MESHACK MULI KILUNGU VS BENSON MUTHINI MUNGUTI

High Court at Makueni High Court · · Matheka, Teresia Mumbua

RULING

  1. Before me is the Notice of Motion dated 27/02/2023 brought under section 79G, 1B and 3A of the CPA (Civil Procedure Act) seeking inter alia the order: That there be an extension of time within which the applicant is allowed to lodge and file Notice of Appeal and the subsequent appeal out of time.
  2. The grounds for the application are set out on the face of the application and the supporting affidavit of Bernard M. Kitindio advocate:
  3. That judgment in this matter was delivered on 14th October 2022 and both the applicant and his advocates were not aware since the trial court did not deliver the judgment on the date when the matter was slated for judgment and the applicant did

not receive a notice from the trial court on when the judgment was to be delivered.

  1. That ardent effort to secure the judgment led the applicant’s advocates on record to discover that judgment was delivered on 14th October 2022.
  2. That the applicant was made aware of the judgment and after going through it he felt heavily aggrieved and instructed his advocates on record to appeal out of time.
  3. That there has not been inordinate delay in making his application.
  4. That the intended appeal is arguable and has prima facie chances of success.
  5. That no prejudice will be occasioned to the respondent should this application be allowed.
  6. That the application herein is made in good faith and in the interest of justice.
  7. Counsel depones that they got instructions to lodge the appeal on 10/02/2023 that the delay was as a result of the court not giving notice of the judgment date to the parties after adjourning it the date when it was scheduled to be delivered.
  8. The application is opposed vide the replying affidavit of Penina Alima Nandwa Oloo advocate in the firm of Oloo and Oloo advocates LLP who had personal conduct of the matter. The affidavit is sworn on 23/05/2023. She depones that:There was inordinate, in explainable and inexcusable delay in not only filing the appeal desired herein, but also in filing the suit that gave rise to the judgment sought to be appealed from, hence its justified dismissal….[that] Even after the impugned leave was granted to file suit out of time, again there was in explainable delay in filing the same for well over a period of one year…[that] The date of judgment notice was adequately communicated vide a notice dated 11/09/22 on the Kilungu official WhatsApp forum where the applicant’s counsel is. …[that] It is on the basis of the said communication that on 4/10/2022, we attended court and obtained the judgment intended to be appealed against….[that] The cause of action, the subject of the lower court case that is intended to be appealed against arose on 1/11/2014, over 10 years ago…[that] It gave rise to a cause of action that has remained oppressive, and keeps hanging on the defendant neck, and the court is implored not aid this process. It is prejudicial to the respondent.
  9. It is further deponed that the respondent will suffer prejudice – having terminated the advocate client relationship on the matter by paying final fees – and re-opening the matter will be at an extra cost. That there has been a lack of diligence in this matter right from the onset causing the respondent prejudice.
  10. Counsel proceeded to argue the application by way of written submissions.
  11. It is submitted for the applicant that this court has the inherent jurisdiction to extend time to allow the applicant to file the Notice of Appeal and appeal out of time because he has an arguable appeal and laid sufficient evidence before the court to support the application. He relies on section 79G of the CPA and Stanley Kahoro Mwangi & 2 Others –vs- Kanyamwi Trading Co. Ltd (2015) e KLR, where the Supreme Court stated

” This application is depended on whether or not the delay can be viewed as being an exceptional one … it is upon the applicant to place sufficient material before the court which would explain why there was delay in filing the Memorandum and Record of Appeal.

  1. It is argued that the delay time for filing is not inordinate – being about 3 months. The court is referred to AGIP (Kenya) Limited –vs- Highlands Tyres Ltd (2001) eKLR where there was a delay of 8 months and the court stated that eight months’ delay was not inordinate in the circumstances. Further, in  Almas Hauliers Ltd –vs- Abdulnasir Abukar Hassan (2017) e KLR  where a delay of four months was found not to be inordinate”
  2. For the respondent, it is submitted that there was inordinate delay which has not been explained. The court was referred to Edith Gichugu Koine –v- Stephen Njagi Thoithi (2014) e KLR where it was stated that ‘…whenever an application for extension of time is before a court, the court ought to take into account several factors specifically, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted and whether the matter raises issues of public importance amongst others …” This was emphasized in Paul Musili Wambua –v AG and 2 Others [2015] e KLR.
  3. That the date of the judgment was notified to parties through the official WhatsApp page as demonstrated by the respondent – that the kind of negligence/mistake by both counsel and litigant were inexcusable.
  4. The only issue for determination is whether the application has merit.
  5. I have carefully considered the application, the rival affidavit and submissions. The only ground for the application is that the subordinate court did not give notice to applicant and his counsel of the date for judgment.
  6. The respondent has clearly demonstrated that the court issued a notice via the Kilungu Law Courts WhatsApp Official page- a  fact not disputed by counsel for the applicant. It cannot be wished away that the court indeed issued the notice and it is from this same wall that the respondent counsel saw the date and attended court and obtained judgment.
  7. The thing is it was up to the plaintiff/applicant and his counsel to follow up with the court to find out what the new date for the judgment would be – this especially after they had filed their suit late – again after being granted leave to do so.
  8. On the period of delay that may or may not be inordinate, each case must be considered on its facts – on this one the 3 months’ amount to inordinate delay. From the word go – the plaintiff/applicant has not been a respector of statutory time lines. Having got in late, one would have expected more vigilance over the matter and greater interest on its progress.  This matter has been in the court for 10 years now and eventually the respondent will suffer prejudice.
  9. From the foregoing it is clear to me that the applicant fails to tick the boxes in the case he cited – County Executive of Kisumu above.
  10. The applicant does not deserve the discretion of this court and the application is declined with costs to the respondent.

Dated, signed and delivered virtually on 22nd April 2024

Mumbua T Matheka

Judge

Ms. Muia for the applicant

Mrs Kiarie for the respondent

Ms Nelima CA

    MESHACK MULI KILUNGU VS BENSON MUTHINI MUNGUTI MESHACK MULI KILUNGU VS BENSON MUTHINI MUNGUTI