BRIEF FACTS
The Defendants filed the instant application dated 12th February, 2021 seeking the following orders:
1. Spent.
2. THAT the Honourable court be pleased to grant the Applicant leave to lodge an appeal out of time against the judgment of Hon. R. Yator, Principal Magistrate on 5th November, 2020.
3. THAT upon grant of leave to appeal out of time, the Memorandum of Appeal lodged herein be deemed as duly filed.
4. THAT the costs of and incidental to this application be costs in the intended appeal.
The Application was based on grounds set out and supported by the Affidavit of ISAIAH KIPTARUS KIMEIYWO a director of the Applicant herein sworn on 12th February, 2021. He stated that they applied for stay of execution of the judgment delivered on 5th November, 2020 in MOLO CMCC NO. 45 OF 2018.
He further stated that their advocate made the application orally with the hope that a copy of the judgment would be supplied to the advocate for advice. He also stated that he had raised issue with the award and contemplated to lodge an appeal but the same was not tenable since a copy of the judgment had not been supplied. He stated that they were not supplied with certified copies of the pleadings despite having applied. He stated that the period within which the memorandum of appeal ought to have been filed lapsed. In conclusion, he stated that the appeal raised sound legal questions with merit and urged the court to allow the application.
Response
The 1st Respondent filed her Replying Affidavit dated 3rd March, 2021 where she averred that the application was an abuse of the court process. She averred that the Applicant failed to explain the delay since 5th November, 2020. She added that the Applicant also failed to demonstrate by way of payment receipts the attempt made to peruse the lower court file. The 1st Respondent averred that the application was an afterthought prompted by her replying affidavit to the application dated 2nd December, 2020.
She averred that the Applicant knew that it was to file an appeal within the required time but it ignored and instead filed an application for stay of execution. She further averred that the Applicant could have filed and served the memorandum of appeal pending compilation of the record of appeal. It was her averment that the Applicant did not place before this court any proof of payment as deposit for typing of such proceedings.
The 2nd Respondent also filed his Replying Affidavit dated 20th April, 2021 where he reiterated the contents of the Applicant’s supporting affidavit. He averred that in agreement with the Applicant, there were delays on procedure that were not intentional which ought to be excused. He added that on account of the covid pandemic, the court process was disrupted which caused the delay. He averred that they filed an appeal on the matter and urged the court to allow the Applicant file its appeal out of time.
The Applicant also filed a further affidavit dated 29th April, 2024 where he reiterated the contents of his supporting affidavit to the application. He annexed a copy of the certificate of delay and averred that the delay was intentional and has been explained thus excusable.
Submissions
Counsel for the Applicant filed its submissions dated 29th April, 2024 where he identified three issues for determination. First issue was whether the Applicant is entitled to be granted leave to lodge an appeal out of time against the judgment issued by the trial court in Molo CMCC Land Case No. 45 of 2018 on 5th November, 2020. He submitted that it was the Applicant’s desire to seek audience otherwise there would be injustice as their intended appeal would be rendered nugatory resulting to irreparable loss. Counsel relied on the Court of Appeal case of Emmanuel Ngade Nyoka V Kidheka Mutisya Ngata Civil Appeal No. 17 of 2016 and submitted that the decision to enlarge time for filing an appeal is discretionary. He submitted that the delay in filing the appeal was explained and requested the court to find the explanation sufficient.
The second issue was whether the Respondents stand to suffer any irreparable injury if the application is allowed. Counsel submitted that from the 1st and 2nd Respondents replying affidavits, there was no where they mentioned that they would suffer any prejudice if the application was allowed. He further submitted that the Applicant would suffer irreparable injury if the orders sought are not granted since it is the rightful owner of the suit property. Counsel cited the case of Pius Kipchirchir Kogo V Frank Kimeli Tenai [2018] eKLR and submitted that the Respondents would still have an opportunity to be heard on appeal.
The final issue was on costs where counsel relied on Section 27 of the Civil Procedure Rules and urged the court to dismiss the suit with costs to the 1st Respondent.
Counsel for the 1st Respondent on the other hand filed their submissions dated 13th April, 2021 where they relied on the Court of Appeal case of Mwangi V Kenya Airways Ltd [2003] KLR which cited with approval the case of Samuel Mwaura Muthumbi V Josephine Wanjiru that set out the factors to consider before grant of leave to appeal out of time. He relied on Section 79G of the Civil Procedure Act and submitted that judgment was delivered on 5th November, 2020 whereas the application filed on 12th February, 2021. Counsel submitted that the Applicant was not vigilant and thus the delay was inexcusable. He went on to submit that the reason given by the Applicant for the delay being that the court file was unavailable was false since the file was available on application. Counsel urged the court to find that the reason for delay was unsatisfactory.
He also submitted that the memorandum of appeal does not raise triable issues with no chance of succeeding. He argued that the Applicant’s claim that he was unable to peruse the file was questionable since the Applicant has always been attending court and never raised the said concern. Counsel submitted that the 1st Respondent stands to suffer prejudice since she will be denied a chance to occupy and use the suit land. He also submitted that compliance with timelines in litigation matters were vital and the excuses given by the Applicant could have been easily avoided. Counsel cited the Court of Appeal case of Kenya Railways Corporation V Quick Lubes E.A Ltd [2015] eKLR and submitted that grant of the orders sought would not be in the interest of justice since the 1st Respondent would be prevented from enjoying the fruits of the judgment. He relied on Order 42 Rule 6 of the Civil Procedure Rules and submitted that the Applicant failed to satisfy the conditions for grant of stay of execution pending appeal. Counsel cited the cases in James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR, Court of Appeal case in Marangu Rucha & Another V Bernadette Muthina Nzioki & 8 Others [2015] eKLR and the Court of Appeal case in Butt V Rent Restriction Tribunal [1982] KLR 417. In conclusion, counsel urged the court to dismiss the instant application with costs.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether the Applicant should be granted leave to file an appeal out of time. Section 79G of the Civil Procedure Act provides as follows:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
In the instant case, it is not in dispute that judgment was delivered on 5th November, 2020. It is trite law that the Applicant had 30 days within which it was to file an appeal. It was however the Applicant’s claim that despite request for typed proceedings on 30th November, 2020, there was delay due to the slowed down court procedures as a result of Covid-19. The Applicant in support of this attached a Certificate of Delay dated 24th November, 2022. It is noteworthy that this court has the discretion to extend time which ought to be exercised within the principles of the law. In the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 OF 2020) UR where it was held:
“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.”[Emphasis mine]
It is a fact that the time lapsed between the date of the judgment and the date of filing this application was approximately three months. It is this court’s view that the delay was not inordinate. It is also this court’s view that the claim by the 1st Respondent that she will be denied a chance to occupy and use the suit land does not demonstrate that she would suffer prejudice if the Applicant is allowed to exercise its right to appeal.
In the upshot, the application dated 12th February, 2021 is allowed in the following terms:
a) The Applicant is granted leave to file an appeal out of time against the judgment in Molo CMCC Land Case No. 45 of 2018 delivered on 5th November, 2020.
b) The Memorandum of Appeal dated 4th December, 2020 is hereby deemed to be fully and properly filed and served.
c) The Applicant shall compile, file and serve a record of appeal within 30 days and move the Court appropriately towards the finalization of this Appeal.
d) Each party shall bear their own costs of this application.
RULING DATED, SIGNED AND DELIVERED THIS 9 TH DAY OF OCTOBER 2024.
The Defendants filed the instant application dated 12th February, 2021 seeking the following orders:
1. Spent.
2. THAT the Honourable court be pleased to grant the Applicant leave to lodge an appeal out of time against the judgment of Hon. R. Yator, Principal Magistrate on 5th November, 2020.
3. THAT upon grant of leave to appeal out of time, the Memorandum of Appeal lodged herein be deemed as duly filed.
4. THAT the costs of and incidental to this application be costs in the intended appeal.
The Application was based on grounds set out and supported by the Affidavit of ISAIAH KIPTARUS KIMEIYWO a director of the Applicant herein sworn on 12th February, 2021. He stated that they applied for stay of execution of the judgment delivered on 5th November, 2020 in MOLO CMCC NO. 45 OF 2018.
He further stated that their advocate made the application orally with the hope that a copy of the judgment would be supplied to the advocate for advice. He also stated that he had raised issue with the award and contemplated to lodge an appeal but the same was not tenable since a copy of the judgment had not been supplied. He stated that they were not supplied with certified copies of the pleadings despite having applied. He stated that the period within which the memorandum of appeal ought to have been filed lapsed. In conclusion, he stated that the appeal raised sound legal questions with merit and urged the court to allow the application.
Response
The 1st Respondent filed her Replying Affidavit dated 3rd March, 2021 where she averred that the application was an abuse of the court process. She averred that the Applicant failed to explain the delay since 5th November, 2020. She added that the Applicant also failed to demonstrate by way of payment receipts the attempt made to peruse the lower court file. The 1st Respondent averred that the application was an afterthought prompted by her replying affidavit to the application dated 2nd December, 2020.
She averred that the Applicant knew that it was to file an appeal within the required time but it ignored and instead filed an application for stay of execution. She further averred that the Applicant could have filed and served the memorandum of appeal pending compilation of the record of appeal. It was her averment that the Applicant did not place before this court any proof of payment as deposit for typing of such proceedings.
The 2nd Respondent also filed his Replying Affidavit dated 20th April, 2021 where he reiterated the contents of the Applicant’s supporting affidavit. He averred that in agreement with the Applicant, there were delays on procedure that were not intentional which ought to be excused. He added that on account of the covid pandemic, the court process was disrupted which caused the delay. He averred that they filed an appeal on the matter and urged the court to allow the Applicant file its appeal out of time.
The Applicant also filed a further affidavit dated 29th April, 2024 where he reiterated the contents of his supporting affidavit to the application. He annexed a copy of the certificate of delay and averred that the delay was intentional and has been explained thus excusable.
Submissions
Counsel for the Applicant filed its submissions dated 29th April, 2024 where he identified three issues for determination. First issue was whether the Applicant is entitled to be granted leave to lodge an appeal out of time against the judgment issued by the trial court in Molo CMCC Land Case No. 45 of 2018 on 5th November, 2020. He submitted that it was the Applicant’s desire to seek audience otherwise there would be injustice as their intended appeal would be rendered nugatory resulting to irreparable loss. Counsel relied on the Court of Appeal case of Emmanuel Ngade Nyoka V Kidheka Mutisya Ngata Civil Appeal No. 17 of 2016 and submitted that the decision to enlarge time for filing an appeal is discretionary. He submitted that the delay in filing the appeal was explained and requested the court to find the explanation sufficient.
The second issue was whether the Respondents stand to suffer any irreparable injury if the application is allowed. Counsel submitted that from the 1st and 2nd Respondents replying affidavits, there was no where they mentioned that they would suffer any prejudice if the application was allowed. He further submitted that the Applicant would suffer irreparable injury if the orders sought are not granted since it is the rightful owner of the suit property. Counsel cited the case of Pius Kipchirchir Kogo V Frank Kimeli Tenai [2018] eKLR and submitted that the Respondents would still have an opportunity to be heard on appeal.
The final issue was on costs where counsel relied on Section 27 of the Civil Procedure Rules and urged the court to dismiss the suit with costs to the 1st Respondent.
Counsel for the 1st Respondent on the other hand filed their submissions dated 13th April, 2021 where they relied on the Court of Appeal case of Mwangi V Kenya Airways Ltd [2003] KLR which cited with approval the case of Samuel Mwaura Muthumbi V Josephine Wanjiru that set out the factors to consider before grant of leave to appeal out of time. He relied on Section 79G of the Civil Procedure Act and submitted that judgment was delivered on 5th November, 2020 whereas the application filed on 12th February, 2021. Counsel submitted that the Applicant was not vigilant and thus the delay was inexcusable. He went on to submit that the reason given by the Applicant for the delay being that the court file was unavailable was false since the file was available on application. Counsel urged the court to find that the reason for delay was unsatisfactory.
He also submitted that the memorandum of appeal does not raise triable issues with no chance of succeeding. He argued that the Applicant’s claim that he was unable to peruse the file was questionable since the Applicant has always been attending court and never raised the said concern. Counsel submitted that the 1st Respondent stands to suffer prejudice since she will be denied a chance to occupy and use the suit land. He also submitted that compliance with timelines in litigation matters were vital and the excuses given by the Applicant could have been easily avoided. Counsel cited the Court of Appeal case of Kenya Railways Corporation V Quick Lubes E.A Ltd [2015] eKLR and submitted that grant of the orders sought would not be in the interest of justice since the 1st Respondent would be prevented from enjoying the fruits of the judgment. He relied on Order 42 Rule 6 of the Civil Procedure Rules and submitted that the Applicant failed to satisfy the conditions for grant of stay of execution pending appeal. Counsel cited the cases in James Wangalwa & Another V Agnes Naliaka Cheseto [2012] eKLR, Court of Appeal case in Marangu Rucha & Another V Bernadette Muthina Nzioki & 8 Others [2015] eKLR and the Court of Appeal case in Butt V Rent Restriction Tribunal [1982] KLR 417. In conclusion, counsel urged the court to dismiss the instant application with costs.
Analysis and Determination
This court has carefully considered the application and the main issue for determination is whether the Applicant should be granted leave to file an appeal out of time. Section 79G of the Civil Procedure Act provides as follows:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
In the instant case, it is not in dispute that judgment was delivered on 5th November, 2020. It is trite law that the Applicant had 30 days within which it was to file an appeal. It was however the Applicant’s claim that despite request for typed proceedings on 30th November, 2020, there was delay due to the slowed down court procedures as a result of Covid-19. The Applicant in support of this attached a Certificate of Delay dated 24th November, 2022. It is noteworthy that this court has the discretion to extend time which ought to be exercised within the principles of the law. In the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 OF 2020) UR where it was held:
“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.”[Emphasis mine]
It is a fact that the time lapsed between the date of the judgment and the date of filing this application was approximately three months. It is this court’s view that the delay was not inordinate. It is also this court’s view that the claim by the 1st Respondent that she will be denied a chance to occupy and use the suit land does not demonstrate that she would suffer prejudice if the Applicant is allowed to exercise its right to appeal.
In the upshot, the application dated 12th February, 2021 is allowed in the following terms:
a) The Applicant is granted leave to file an appeal out of time against the judgment in Molo CMCC Land Case No. 45 of 2018 delivered on 5th November, 2020.
b) The Memorandum of Appeal dated 4th December, 2020 is hereby deemed to be fully and properly filed and served.
c) The Applicant shall compile, file and serve a record of appeal within 30 days and move the Court appropriately towards the finalization of this Appeal.
d) Each party shall bear their own costs of this application.
RULING DATED, SIGNED AND DELIVERED THIS 9 TH DAY OF OCTOBER 2024.