[2022] KEHC 9972 (KLR)

Charles v South Nyanza Sugar Co. Ltd (Miscellaneous Civil Application E027 of 2021) [2022] KEHC 9972 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9972 (KLR)

Republic of Kenya

In the High Court at Migori

Miscellaneous Civil Application E027 of 2021

RPV Wendoh, J

July 7, 2022

Between

Margaret A. Charles

Applicant

and

South Nyanza Sugar Co. Ltd

Respondent

Ruling

1. This ruling is in respect to the Notice of Motion Application dated 10/3/2021 filed by Margaret A. Charles (applicant) through the firm of Oduk & Co. Advocates seeking the following orders: -1. That the applicant be granted leave to appeal out of time against the whole of the judgment of Hon. Langat dated 23/4/2019 in Rongo PMCC No. 151 of 2014. 2.That the memorandum of appeal annexed hereto and marked X be deemed as duly filed upon payment of the requested (sic) filing fees.3. Costs be provided for.

2. The grounds upon which the application is based, are found in the body of the application and the supporting affidavit of Mr. Ezekiel Oduk, learned Counsel for the applicant dated 5/2/2021.

3. The Counsel deponed that the applicant filed a suit which was heard and a judgement delivered on 23/4/2019 without notice; that Counsel was unable to access court in 2020 due to the pandemic and came to know of the outcome only in January 2021. Counsel further deponed that he has since communicated this information to the applicant who wishes to appeal against the judgement; that they have prepared the memorandum appeal but unfortunately the time for lodging the appeal had lapsed. It was stated that no prejudice will be occasioned to the respondent in the circumstances the delay being wholly beyond the control of the applicant. Counsel further stated that the judgement raises fundamental issues in the suit wherein a third party’s interference in the contract negates the clause in the contract entered into by the parties.

4. The application was not opposed. Counsel for the respondent attended court all through but chose not to file any response. I have considered the application, the annexure in support of the application being the memorandum of appeal and the submissions by the applicant.

5. In determining whether leave to appeal out of time should be granted, I am guided by the decision of the Court of Appeal in Edith Gichungu Koinevs Stephen Njagi Thoithi(2014) eKLR where Odek JA rendered himself as thus:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”

6. On the period of delay, Section 79G of the Civil Procedure Act provides that appeals from the subordinate court should be filed within thirty (30) days from the date of the judgement and/or order. The applicant alleged that the impugned judgement was delivered on 23/4/2019 without the applicant’s knowledge but Counsel for the applicant came to learn of the judgement around January 2021. The instant application was filed on 10/3/2021. This is a period of approximately more than two years.

7. The applicant’s reason for the one-year delay was that the COVID pandemic in the year 2020, closed down court operations and restricted movements in different parts of the country including movement to and from Nairobi where he practices.

8. Without the lower court record, this court cannot confirm whether or not the judgment was read in absence of the parties. This is because April, 2019 was a year before the Covid Pandemic. The only question would have been why the appellant or his advocate never checked with the court what had happened to the judgment for all that time. The delay from 2019 to 2021 is not explained sufficiently. However, since the respondent did not oppose the application, the court will assume the respondent agreed with this averment by the applicant. The COVID pandemic indeed interfered the normal court operations from March 2020 to later that year. Before clear guidelines could be issued, most litigants lost track of that cases by being hindered from accessing court premises. However, with directions from the C. J. and the courts operations resumed and I believe two (2) years in delay points to some laxity on the part of the applicant and his counsel but it is excused.

9. Section 79G gives the court powers to allow an appeal to be admitted out of time if the applicant has good and sufficient reasons for not filing the appeal in time. The delay has been clearly explained and I find that there are proper reasons advanced by the applicant to warrant enlargement of time to file the appeal. There is no known prejudice that the respondent will suffer if time is enlarged because the Respondent’s counsel did not allude to any.

10. Whether the applicant has an arguable appeal: I have considered the draft grounds of appeal, the applicant is challenging the fact that the trial Magistrate dismissed the suit on account of time bar. The applicant also faulted the trial Magistrate for failing to find that the appellant had sufficiently proved the case on a balance of probabilities and failure to award the appellant damages for breach of contract. I find that these grounds are arguable.

11. I find that the application is merited and the following orders do issue:-1. The applicant is hereby granted leave to file and serve the draft annexed memorandum of appeal upon payment of the requisite fees within 7 days hereof;2. The applicant do file and serve the record of appeal within 45 days hereof;3. Mention before the Deputy Registrar on 5/9/2022 to confirm compliance.4. Costs shall be in the cause.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 7TH DAY OF JULY, 2022R. WENDOHJUDGERuling delivered in the presence of:-Mr. Oduk Absent for the Applicant.Mr. Bosire for the Respondent.Nyauke Court Assistant.