[2022] KEHC 10628 (KLR)

Achieng v Wanja & another (Miscellaneous Civil Case E016 of 2021) [2022] KEHC 10628 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10628 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Miscellaneous Civil Case E016 of 2021

HPG Waweru, J

June 16, 2022

Between

Joseph Odembo Achieng

Applicant

and

Dorothy Wanja

1st Respondent

Mordecal Ogada

2nd Respondent

Ruling

1. The Applicant in this case, Joseph Odembo Achieng, seeks by notice of motion dated September 29, 2021 the main order that time be extended within which the Applicant may lodge appeal against the decree passed on November 26, 2020 in Nanyuki CMCC No 44 of 2018. By that decree the Applicant’s (plaintiff’s) suit against the Respondents (defendants) was dismissed with costs after full trial.

2. The decree having been passed on November 26, 2020, appeal ought to have been lodged on or before December 26, 2020 (section 79G of the Civil Procedure Act, Cap 21). The present application for leave to appeal out of time was filed on September 30, 2021; therefore the delay that we are dealing with here is about nine (9) months.

3. Under the proviso to section 79G aforesaid, this court may admit an appeal out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

4. The reasons for the delay in lodging his appeal are set out on the face of the application and more particularly deponed to in paragraphs 5, 6, 7, 8 and 10 of the supporting affidavit annexed to the application. Those reasons are –iThat the Applicant travelled outside the jurisdiction of the court between October 2019 to the time of filing the present application to attend to his ailing father who needed his physical presence in his “final”’ moments, and also assistance with his medical needs. He has annexed some documents that are largely illegible.iiThat after his father died, his mother, brother and aunt fell ill and the Applicant had to stay outside the court’s jurisdiction to attend to them and their medical needs.iiiThat after he travelled back to Nanyuki the Applicant was unable to raise the necessary legal fees to instruct an advocate to appeal, and he was able to do so only after he secured various soft loans.ivThat his intended appeal is “highly meritorious and stands good chances of success”.vThat it is in the interest of justice that the Applicant be accorded an opportunity to appeal.

5. On October 13, 2021 the Applicant filed a supplementary affidavit to which he annexed some documents which tended to show that during the period of the delay he was away from Nanyuki. The affidavit was filed without leave of the court, which leave had not even been sought. The Respondents objected to this supplementary affidavit being included in the record of the court for two reasons – one, lack of leave of the court to file the same; and two, that the supplementary affidavit was not in response to any new matters raised in a replying affidavit, but was merely intended to fill in gaps in the supporting affidavit.

6. The Respondents’ replying affidavit was in fact filed later on November 5, 2021. It was sworn by their advocate. By it the Respondents opposed the Applicant’s application upon the following grounds –iThat the Applicant was represented by counsel throughout in the trial court.iiThat the suit was heard fully on merit in the trial court and dismissed with costs.iiiThat the reasons given by the Applicant for the delay are not plausible.ivThat no draft memorandum of appeal has been annexed to the application to enable the court to judge if the intended appeal is arguable.

7. I have considered the oral submissions of the learned counsels. I note with concern that the copy of the judgment of the lower court annexed to the application is hardly legible at all, just like the other documents exhibited in the supporting affidavit. That fact, coupled with the fact that the Applicant has not bothered to annex a draft memorandum of appeal, means that this court has not been able to appreciate what case was before the trial court, the manner in which it dealt with the evidence tendered before it, or whether the Applicant’s intended appeal is arguable. It was the Applicant’s duty to place before this court documents (including the judgment of the trial court) that are freely legible.

8. The Applicant has claimed that he was outside the jurisdiction of this court during the period of the delay and therefor unable to instruct counsel to lodge appeal. By “outside the jurisdiction of this court” he appears to mean outside Nanyuki. This ground rings hollow considering that instructions need not be given personally and could be given by phone, letter or email.

9. The Applicant has also claimed that during the period of the delay he could not raise enough money to instruct counsel (a reason that directly contradicts the reason just dealt with!). In any event he has not exhibited any evidence of what he might have been charged by an advocate that he was unable to raise.

10. To enable this court to exercise its discretion in favour of the Applicant, he had the duty to satisfy the court that he had good and sufficient cause for not filing the appeal in time. I have not found such good and sufficient cause.

11. In the event the Applicant’s application by notice of motion dated September 29, 2021 is hereby dismissed with costs to the Respondents. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 15TH DAY OF JUNE 2022. H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 16TH DAY OF JUNE 2022