1. On 30th January 2022, the Applicant herein filed a Notice of Motion dated 27th January 2024 seeking leave to file an appeal against the ruling of Hon. J. Wanjala CM delivered on 4th May 2023 in Kabarnet CMCC ELC Case No.34 of 2018-Wilson Bosmet and Mark R. Chemjor v. Samson Chemjor.
2. The application is brought under Sections 79 G and 95 of the Civil Procedure Act. It is premised on the grounds that the Applicant was aggrieved by the decision of the trial court; that the applicant applied for certified typed copies of the ruling immediately after the delivery of the ruling; that by the time the Applicant was supplied with a certified copy of the ruling the time within which he ought to have appealed against the ruling had expired. Explaining that he applied and got issued with a certificate of delay, the Applicant has deponed that the delay in filing an appeal was not intentional and that it is fair and just that he be allowed to file his intended appeal out of time, which appeal he deposes has high chances of success.
3. The application is supported by the affidavit of the applicant, Samson Chemjor, sworn on 27th January 2024, in which the grounds on the face of the application are reiterated. Besides reiterating the grounds on the face of the application, the applicant has annexed the following documents to the application:-
i. Letter from his advocate, E.K Mwaita, to the Court Administrator, dated 8th May 2023, requesting for typed and certified copy of ruling, marked SC1;
ii. Ruling of the lower court delivered on 4th May 2023; marked SC2;
iii. Certificate of delay issued on 17th January 2024, marked SC3; and
iv. Draft Memorandum of appeal, marked SC4.
4. The application is opposed through the replying affidavit of the 1st respondent, Wilson Bomet, sworn on 7th May 2024. Through that replying affidavit, the 1st respondent contends that the application has no merit, is afterthought and is calculated at misleading the court. The 1st respondent doubts that it took the time indicated in the certificate of delay (9 months) to type the court’s ruling. As to whether the intended appeal is arguable the 1st respondent contends that the impugned ruling clear and that no triable issues have been demonstrated.
5. Terming the intended appeal frivolous and vexatious, the 1st respondent deposes that the applicant has not demonstrated what injustice he stands to suffer if leave to appeal out of time is denied.
6. In support of his contention that the appeal is lacking in merit, frivolous and vexatious, the 1st respondent has inter alia pointed that the learned trial magistrate, in the impugned ruling, observed that the applicant was party to a mediation process, in which process it was decided that the applicant had no interest in the suit property. The respondent points out that the applicant did not challenge the outcome of the mediation process and the succession proceedings that ensued from it culminating in determination of entitlement to the suit property.
7. In a rejoinder, the applicant filed a supplementary affidavit, sworn on 3rd June 2024 in which he inter alia deposes that he has a right to be heard on his intended appeal and asserts that his intended appeal has high chances of success.
8. Concerning the respondent’s contention that the appeal is brought in bad faith, the applicant denies that allegation and states that the appeal is brought in good faith.
9. The applicant acknowledges that he participated in the mediation process and succession proceedings referred to in the replying affidavit of the respondents but explains that he did not participate in the whole process. He also states that he differed with his family members on the mode of distribution of assets by failing to sign the consent for confirmation of grant.
10. The applicant gives the reasons for filing the Preliminary Objection which forms the subject matter of this application as forging of his signature, privity of contract and locus standi to institute the suit pending before the lower court.
11. It is the applicant’s case that the respondents have not made up a case for dismissal of his application or demonstrated what prejudice they would suffer if the application is allowed.
Analysis and determination
12. This court has discretionary power to grant leave to file an appeal out of time. That power is granted by Section 79 G of the Civil Procedure Act. In that regard see the case of Edward Kamau & Another vs. Hannah Mukui Gichuki & Another where it was stated:-
“On whether this court should grant extension of time for filing an appeal, the applicable law is section 79G of the Civil Procedure Act…
Under the proviso to the said Section, 79G of the Civil Procedure Act, an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.”
The court further stated:-
“The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl. 16 of 2014 laid down the following as the underlying principles that a court should consider in exercise of discretion to extent time: -
i. Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
ii. The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
iii. As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
iv. Where there is a reason for the delay; the delay should be explained to the satisfaction of the court;
v. Whether there will be any prejudice to be suffered by the respondents if the extension is granted;
vi. The application should have been brought without undue delay; and
vii. In certain cases, like election petitions, public interest should be a consideration for extending time.”
13. In the circumstances of this case, the decision/ruling sought to be appealed from was delivered on 4th May 2023.
14. The court record indicates that the ruling was delivered in the absence of the defendant’s counsel, Mr. Mwaita. That fact though, did not contribute to the delay in filing the intended appeal since from the evidence provided in support of the application herein, the applicant’s counsel, Mr. Mwaita, was aware of the ruling as early as 8th May 2023. In that regard see document marked SC1 which attests to that fact.
15. During delivery of the impugned ruling, the trial magistrate ordered that a typed ruling be supplied within 7 days.
16. Whereas the applicant has demonstrated that through his advocate, he wrote to the court requesting to be supplied with a certified copy of the typed ruling immediately after the ruling was delivered, he has not demonstrated to the court that the ruling could not be made available within the seven days as directed by the court. The certificate of delay given to the applicant indicates that the applicant was issued with the copy of the ruling as per the order made by the court on 4th May 2023. In the absence of any evidence to the contrary, I take that to mean that the applicant was supplied with a copy of the ruling within 7 days and that it is only supply of the certified copy of the ruling which delayed. In the event, I am wrong in my construction of the meaning of the averments contains in paragraph 2 and 3 of the Certificate of delay, SC2, it is the view of this court that given the fact that the trial court had ordered that the ruling be supplied within seven days, with due diligence, any party desirous of obtaining the ruling would have obtained it within the period ordered by the court.
17. Other than proving that there was delay in issuance of a certified copy of the ruling, the applicant has not satisfied this court that with due diligence, he would not have obtained a certified copy of the ruling. I note that the certificate of delay does not offer any reasons for the delay. The statement that it took 240 days to type and prepare the ruling, in the circumstances, cannot be a good reason or explanation for the delay in filing an appeal or at least the long and in ordinate delay in moving the court for leave to file the appeal.
18. Whereas in his submissions filed on 21st June 2024 the applicant submits that the reasons he has given for delay in filing his intended appeal, to wit delay in obtaining a certified copy of the typed ruling, suffice to account for the delay, in view of what I have stated herein above, I am not satisfied with the explanation offered by the applicant.
19. Concerning the applicant’s contention that issuance of the certificate of delay cured the issue of delay in filing of the appeal, I reiterate my finding that the certificate of delay per se cannot form a basis for conclusion that the ruling or proceedings could not have been obtained earlier. Given the court had given an order for supply of the ruling within seven days, which order, the applicant has not demonstrated that it could not be complied with despite exercise of due diligence, on his part, I reiterate my finding that the delay in filing the appeal or filing an application for filing appeal out of time has not been properly explained.
20. As pointed out herein above, in exercise of the discretionary power vested in it of deciding whether or not to grant an applicant leave to file an appeal out of time, this court also considers whether there will be any prejudice to be suffered by the respondent(s) if the extension is granted.
21. On whether the respondents will suffer any prejudice if the application is allowed, the applicant submit that the applicant will not suffer any prejudice as they will be granted an opportunity to ventilate their issues in the substantive appeal.
22. Regarding that issue considering that allowing the appeal will require the respondents to address issues which are yet to be addressed, in their merits, by the trial court on account of the limited jurisdiction of the trial court on Preliminary Objection, I am of the considered view that the respondents may for no good reason at all be required to address issues or questions that they may still need to address before the lower court, in the event the intended appeal does not succeed.
23. Cognizance of the facts that the issues raised in the application can still be raised by way of appeal in the event, the applicant loses the case in the lower court and is dissatisfied with the outcome of the case, I do find that the respondents may suffer prejudice if the application is allowed by lengthening the time in which he will pursue/defend his case.
24. The upshot of the foregoing is that the applicant has not made up a case for being granted the orders sought. Consequently, I dismiss his application, dated 27th January, 2024 with costs to the respondents.
25. Orders accordingly.
Dated, signed and delivered virtually this 17th day of September, 2024.
In the presence of:
- Mr. Chepngwoso Advocate for the plaintiff.
- Mr. Ondieki Advocate for the defendant.