[2021] KEHC 3937 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA FAMILY DIVISION

AT MOMBASA

FAMILY APPEAL NO.13 OF 2020

ABIA IZIGWA (ALIAS) RODAH IZIGWA………...APPELLANT/APPLICANT

VERSUS

KHALID ALI KHAMIS…………………………………………….RESPONDENT

(Being an appeal from the judgment and decree of Resident Kadhi hon.Abdullah M.Salim in Mombasa KCC No. 68 of 2019)

RULING

1. Pursuant to Sections 79 G,1A,3, and 3A of the Civil Procedure Act and Orders 42(6), 50(6) and 52(1) of the Civil Procedure Rules, the applicant herein moved this court through a Notice of Motion Application dated 11th August, 2020 seeking the following orders;

a) Spent

b) That this honourable court be pleased to grant the applicant leave to file appeal out of time.

c) That upon prayer 2 being granted, the draft memorandum of appeal be deemed as duly filed upon payment of the requisite court fees.

d) That costs of this application be provided for.

2. The application is based on the grounds stated on the face of it and averments contained in the affidavit in support sworn on 11th August 2020 by the applicant stating that; the judgement in MombasaKCCC NO.68 OF 2019 was delivered in her absence; she was not notified of the date of delivery of the said judgement; upon discovery of the delivery of the judgement, she immediately instructed counsel to appeal against the said judgement /decree; by the time sufficient instructions could be obtained from her, the time allowed to lodge an appeal had so far expired; the intended appeal has high chances of success as demonstrated by the annexed draft memorandum of appeal and, she stands to suffer substantial loss if the orders sought are not granted.

3. In response, the respondent filed grounds of objection dated 16th November 2020 opposing the application on the basis that; no reasonable explanation had been given for failure to file the appeal within the prescribed time frame; the application violates the overriding objective of the law under Section 1A and 1B of the Civil Procedure Act and, that the application offends the judicial principles under Article 159(2) (b) of the Constitution. He therefore urged the court to dismiss the application with costs.

4. By consent, parties agreed to dispose of the application by way of written submissions. The Appellant/Applicant through her advocate Mr.Magolo filed written submissions dated 14th December, 2020 thereby reiterating the averments contained in the affidavit in support of the application. He further submitted on the applicable law regarding leave to file an appeal out of time hence citing order 50(5) of the Civil Procedure Rules, Section 79G and 95 of The Civil Procedure Act.

5. Counsel urged the court to exercise its discretion to allow the application while contending that; the delay was neither deliberate nor unreasonable; the applicant deserves the right to be heard on appeal and, that the appeal is not frivolous. In support of this proposition, reliance was placed on the holding in the case of Joseph Kakomo Mbenga vs Maingi Charles&another [2018]eKLRin which the learned Judge with approval concurred with the holding in the case of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others Nairobi (Milimani) HCC No.2255 of 2000[2002]1EA65in which the court set out 3 issues for consideration before granting leave to appeal out of time as follows ;

a) the explanation if any for the delay

b) The merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is frivolous one which would only result in the delay of the course of justice;

c) Whether or not the respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of favourable exercise of discretion in favour of the applicant.

6. Counsel further emphasized that the appeal is merited in view of the fact that the learned Kadhi in his judgement stated clearly that both parties equally contributed to the establishment of the subject matrimonial house and thereafter without any reason, whatsoever, decided that the applicant was entitled to only 10% of the matrimonial house without considering her contribution hence erred in doing so and therefore the appeal has high chances of success.

7. Counsel contended that the respondent can be adequately compensated in monetary term for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant and urged the court to allow the application. On his part, the respondent did not file any submissions.

Analysis and determination

8. I have considered the application herein and the grounds in opposition thereof. I have also considered the applicant’s submissions. The only Issue that arise for determination is whether the applicant has raised sufficient reasons to enable this court grant her leave to appeal out of time.

9. The appellate jurisdiction of this Court in respect of decisions of Kadhis’ and Resident Magistrates’ Courts is stipulated under Section 50 of the Law of Succession Act which provides:

1. An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.

2. An appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and, with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.

10. The Law of Succession Act is silent on the time within which an appeal from the Kadhis’ Courts ought to be filed in this Court. However, Section 58 of the Interpretation and General Provisions Act provides:

“Where no time is prescribed or allowed within which anything shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises”.

11. This honourable court in the case of Rocky Juma Mzee v Rehema Salim Ndoro [2020] eKLR statedthat,

“the fact that no timeline for filing an appeal is prescribed under the Law of Succession Act, does not mean that the period is endless. Under Section 58 of the Interpretation and General Provisions Act, such appeal must be filed without unreasonable delay.

Parliament recognized that there will be instances when delay will occur in doing an act, and thus clothed the Court with the power to enlarge the time for doing the same and impose conditions.”

12. Order 50 Rule 6 of the Civil Procedure Rules further provides:

“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.

13. It is trite law that an order for extension of time to file an appeal out of time is discretionary. Such discretion must however be exercised judicially. The factors to be considered in an application such as the present one, were succinctly set out by the Court of Appeal in Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR as follows:

“For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was Practicable.”

14. The applicant in her submissions heavily relied on order 50 (5) of the civil procedure rules, Section 79G and 95 of the Civil Procedure Act. Section 79G of the Civil Procedure Actprovides that an appeal may only be admitted out of time if an applicant satisfies the court that he has a good and sufficient cause for not filing the appeal in time. In the case of Annah Mwihaki Wairuruv Hannah Wanja Wairuru [2017] eKLR quoting with approval the holding in Leo Sila Mutiso v Rose Hellen WangariMwangi, (Civil Application No. Nai. 255 of 1997) (UR) the court rendered 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 ifthe application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.

15. The applicant herein in her pleadings did not indicate the date of delivery of the subject judgement nor did she attach a copy of the same or decree thus making it difficult for this court to establish whether the said judgement is in existence in the first place and whether it was ever delivered. The draft memorandum of appeal also lacks the crucial details that would have helped this court in making its determination. It does not indicate the date the impugned judgment was delivered. It is also not stated when its delivery came to the knowledge of the applicant so as to be able to assess and calculate whether the delay was unreasonable or justified. Without the impugned decree from the Kadhi’s court, this court cannot act as the existence of such judgment is in doubt. How will the court know whether the intended appeal has high chances of success without reading the subject judgment?

16. Accordingly, this court finds that the applicant has not met the required threshold for this court to exercise its discretion in her favour for the reason that; she has not demonstrated how the delay is not inordinate as her allegation is not backed up by any documentary evidence; she has not given any plausible explanation to the satisfaction of the court why the delay; the person to blame and the actions she took to ensure that the same was filed on time. In the absence of the said judgment, the applicant has not demonstrated that she has serious grievances worthy canvassing on Appeal. For the aforesaid reasons stated herein above, I am inclined to dismiss the application with costs to the respondent.

Dated, signed and delivered virtually at Mombasa this 31st day of August, 2021

J.N. ONYIEGO

JUDGE