[2023] KEHC 27242 (KLR)

Bweko v Kenya Orient Insurance Limited (Civil Appeal 83 of 2023) [2023] KEHC 27242 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27242 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 83 of 2023

DKN Magare, J

December 14, 2023

Between

Membwana Iddi Bweko

Appellant

and

Kenya Orient Insurance Limited

Respondent

Ruling

1. The appellant filed appeal on 11/4/2023. the ruling was delivered by Honourable reportedly on 2/3/2023. By a Replying Affidavit dated 8/11/2023 sworn by Joseph Karanja Kanyi, he stated that he had understood the Application dated 19/10/23. The said application seeks the following orders: -a.That the Memorandum of Appeal dated 11th April 2023 and filed in Court on the same date be struck out for being otherwise an abuse of the Court process for being filed out of time without leave of Court and the Appeal be dismissed with costs.b.Costs.

2. In the Replying Affidavit, they stated that the Judgment had been delivered on 6/3/2023. The Memorandum of Appeal on 11th April 2023. On 19/4/2023 they sought proceedings and filed a Record of Appeal on 25/9/2023. They state that the delay in filing the record was properly explained. They desire to prosecute the Appeal within the shortest possible time. From the proceedings the last time the court was to deliverer judgment was on 29/9/2023. The Judgment is indicated to have been electronically delivered on 2/3/2023. Proceedings do not show how and if the judgment, though dated 2/3/2023 was delivered.

3. The Appellant on the other hand indicated that the judgment was delivered on 2/3/2023. Though documents herein indicate that the judgment was delivered on 2/3/2023, three is no empirical evidence to that effect. Courts are courts of record. The judgment was indicted to be delivered on 27/9/2022. It is true that the Appellant ought to have filed an appeal by 4th April, 2023, if the judgment was delivered on 2/3/2023. Dating a judgment as delivered is one thing and delivering the same is another. Given that the judgment was reportedly delivered electronically there needs to be the following: -i.Notice of deliveryii.Coram for deliveryiii.Evidence of delivery even if to one party.

Respondent 4. The Appellant argues that the Judgment was delivered on 2/3/2023. This will make filing on 11/4/2023 2 days out of time. However, I am at pains to find evidence that the judgment was delivered on the said date. What I understand the Respondent to be saying is that there is no evidence that the judgment was delivered on 2/3/2023. This puts all the parties at a fix, whether or not there is an appeal.

5. A party could explain delay but it is all unless there is an Application to extend time. However, it is impossible to extend time without knowing when the judgment was read. The tragedy I was talking about is seen in the grounds in support of the Application. The judgment though dated 2/3/2023 is indicated to have been delivered on 6/3/2023. If that is true, then the last day should be 7/4/2023. However, 7/4/2023 was Good Friday. 10/4/2023 was Easter Monday. Consequently, the next working day was 11/4/2023. If the Appellant’s ground is to be believed, then the Appeal was filed out of time. Regarding Public Holiday and Sundays the Constitution of Kenya provides in Article 259(7) as follows.‘In any particular circumstances, the period of time prescribed by this Constitution ends on a Sunday or a public holiday, the period extends to the first subsequent day that is not a Sunday or public holiday.”

6. Consequently, there is no violation of Section 79G of the Constitution. The difficulty the court has is that the date of delivery is a moving target. The Respondent indicates 2/3/2023 while the judgment is dated 6/3/2023. The court did not do justice to the party by privately delivering judgment.

7. In the circumstances, the court is left with 3 scenarios.a.To believe the Applicant and therefore find that the Appeal is properly filed.b.To belief the signing of the court and be left with all undelivered judgment.c.To presume that whatever the case, the Appeal is deemed to be within time. The last scenario will obviate a need to return the file to the court to re-deliver the same as I cannot find evidence of delivery.

8. In the unlikely event the appeal was delivered in any of the dates other than 6/3/2023, I shall, in exercise of my discretion extend time by such time as to have the Appeal be deemed to be properly filed. This is because, there is no record that the judgment was delivered. Dating of the judgment as the applicant has shown is not evidence of delivery. At the foot of the judgment there is no quorum. To make matters worse there is no Court Assistant recorded. This is prima facie evidence of undelivered Judgment. Surprisingly, the affidavit in support has a different date of delivery. There is no evidence of the judgment.

9. The Applicant has failed to disclose that they did not record the purported judgment. If they did receive, they are the only ones who know when it was received. Section 112 of the Evidence Act provides as doth:-“Proof of special knowledge in civil proceedings. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

10. Failure to provide evidence of electronic delivery, Ipso facto means that had the Application produced the same, such evidence will be adverse to the Applicant.

11. I am fortified by the holding of the Court in the case of Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Others [2012] eKLR where the court held that:-“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:-In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him……where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party’. The plaintiff cited the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.

12. The documents annexed do not proof the question the Respondent raised. They did not file the appeal out of time. They found a file with a judgment dated 2/3/2023. I hold and find that the said judgment was not delivered on 2/3/2023.

13. Further, I am inclined to believe the Applicant. In case of such dispute I shall take it that the judgment may have been delivered on a date known to the Application and had they disclosed it could have been adverse.

14. The applicant relied on the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the learned Judges held as follows:-“(1)Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.(2)A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.(3)Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.(4)Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court.

15. They state that filing of an Appeal is not a procedural technicality curable under Article 159 of the Constitution. I respectively agree. They rely on the decision of Patrick Kiruja Kithijni =vs= Victors Mugira Marete (2015) eKLR where the Court of appeal stated as doth: -“12. In our view whether or not an appeal is filed on time goes to the jurisdiction of this Court. It is trite that this Court has jurisdiction to entertain appeals filed within the requisite time and/or appeals filed out of time with leave of the Court. To hold otherwise would upset the established clear principles of institution of an appeal in this Court. Consequently, we find that an appeal filed out of time is not curable under Article 159.

16. They also relied on the Court of Appeal decision in Gregory Kiema Kyuma =vs= Marieta Syork and Kieno v (1988) eKLR. They state that the appeal is incompetent. I have not seen the Respondents submission. Upon analysing the evidence on record. I am satisfied that the judgment was delivered on 6/3/2023. If it was not, which is doubtful I shall exercise my inherent jurisdiction to extend time and deem the appeal as filed out of time.

17. It is not power that the court exercises easily. However, the error is caused by the Court by not indicating the date of electronic delivery of judgment. There is no ownership of the judgment by the court below. The other alternative, is unthinkable, returning the Judgement for delivery, as I am satisfied that the same was not properly delivered. To avoid such I make the solving orders: -

a.The Application dated 19/10/2023 lacks merit and is dismissed with costs of Kshs. 20,000/= to the Appellant.b.The Appellant shall file submission within 10 days in the main Appeal.c.The Respondent shall file submission within 10 days upon service.d.The main Appeal is deemed as properly filed within time. It shall bear heard on 11/1/2024 during the RRI.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Hamisi for the RespondentMiss Mango for the AppellantCourt Assistant - Brian