[2023] KEHC 19186 (KLR)

Agia v Asia & another (Miscellaneous Civil Case E055 of 2022) [2023] KEHC 19186 (KLR) (27 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19186 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Miscellaneous Civil Case E055 of 2022

KW Kiarie, J

June 27, 2023

Between

Samwel Kasera Agia

Applicant

and

Dominic Asiago Asia

1st Respondent

Bonifas Agia Odoro

2nd Respondent

Ruling

1. The applicant moved the court by way of Notice of Motion dated December 5, 2022. It was brought under sections 1A, 1B & 3A of the Civil Procedure Act, Order 50 Rules 6 & 8 & Order 51 Rule 1 of theCivil Procedure Rules. He is seeking the following orders:a.That the honorable court be pleased to extend time to appeal and admit the applicants appeal out of time.b.That the cost of this application be provided for.

2. The application was premised on the following grounds:a.The appellant/applicant was dissatisfied with the whole judgment and/or decree of the trial court in succession Cause No 29 of 2016 by Hon Mary A Ochieng (Mrs) Principal Magistrate at Ndhiwa vide a judgment dated October 17, 2019. b.That the delay in filing the appeal was as a result of an appeal filed by the respondents in Civil Appeal No E004 of 2020 which was dismissed by the hon Court on the February 28, 2022 whereby the respondents were dissatisfied by being granted a smaller portion of the estate of the deceased Eliakim Kasera Agia who is he father to the appellant and the respondents are the uncles to the appellant.c.That the delay in filing the appeal in time was not in ordinate since the respondent appeal was still being handled by the honorable court.d.That the intended appeal raises salient and/or pertinent issues of law and facts hence the same has a high chance of success.e.That in the interest of justice this application be allowed.

3. The respondents opposed the application on the following grounds:a.That the judgment that the applicant intends to appeal against was delivered on October 17, 2019. b.That the respondents herein filed an appeal against the said judgment on October 17, 2019, being Homa Bay High court civil appeal No E004 of 2020. c.That that in Homa Bay High Court Civil Appeal No E004 of 2020, was represented by counsel through the firm of Ongoso Ayoma and Co advocatesd.That the applicant and his advocates were aware of the alleged salient and/or pertinent issues from the date the judgment was issued.e.That the applicant seeks to file the intended appeal over three years from the date of judgment in Ndhiwa PMC Succession Cause No 29 OF 2016, and over nine months from the date of judgment in Homa Bay High Court Civil Appeal NoE004 of 2020f.That the delay in filing the intended appeal is inordinate and no proper reason of the said delay has been given,g.That this application is an afterthought and the same should not be entered by this honorable court.

4. 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.'The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion. In order for the court to exercise this discretion judiciously, there are some factors that aid courts in doing so. The Court of Appeal in Thuita Mwangi vs Kenya Airways Ltd [2003] eKLR. This is what the Court said: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.

5. In the instant case, the judgment that the applicant is seeking to challenge was delivered on October 17, 2019. This is a delay of 3 years and two months. According to the applicant the reason for not filing the appeal was occasioned by the fact that an appeal had been filed by the respondents in Civil Appeal No E004 of 2020. This appeal was dismissed by the Court on the February 28, 2022. This argument was untenable for the applicant could have cross appealed.

6. The applicant participated in the Civil Appeal No E004 of 2020 and this application is clearly an abuse of the due process of the court. The application is dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 27TH DAY OF JUNE, 2023KIARIE WAWERU KIARIEJUDGE.