[2023] KEHC 24944 (KLR)

Director of Criminal Investigations & 2 others v Kipkogei (Miscellaneous Civil Application 201 of 2023) [2023] KEHC 24944 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24944 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application 201 of 2023

RN Nyakundi, J

November 7, 2023

Between

Director of Criminal Investigations

1st Appellant

The Officer Commanding Langas Police Station

2nd Appellant

The Attorney General

3rd Appellant

and

Wincer Kipkogei

Respondent

(Being an application for leave to file an appeal out of time against the ruling delivered on 15th September 2021 in Eldoret CMCC E438 of 2021. )

Ruling

Before Justice R. NyakundiMorgan Omusundi & Co. Advocates 1. The applicants approached this court under Certificate of Urgency vide a Notice of Motion Application dated 18th September 2023 seeking the following orders;1. Spent;2. That the applicant be granted leave to file an appeal out of time and the Memorandum of Appeal dated 16/9/2021 and filed on 29th September, 2021, be deemed to be properly filed and served on the Respondents in compliance with the rules of this Honourable Court.3. That the Honourable court be pleased to issue an order directing the Deputy Registrar High Court Eldoret to allocate a proper Case number to the above Memorandum of Appeal dated 16/9/2021 and filed on 29th September, 2021. 4.That the costs of this application be in the cause.

2. The application is premised on the grounds set out therein and the contents in the supporting affidavit of Kwame Ramo.

Applicant’s Case 3. The applicant’s case is that they were sued before the lower court in Eldoret CMCC E438 of 2021 for orders inter alia; for a declaration that the respondent herein was the lawful owner of motor vehicle KBD 198 W Subaru legacy; an order compelling the applicants to release the above motor vehicle to the respondent; general, special and exemplary damages following the impounding of the motor vehicle. The respondent herein also filed a Notice of Motion seeking to have the motor vehicle released to him pending the hearing and determination of the main suit.

4. The court allowed the application vide a ruling delivered on 15th September 2021 and subsequent to the ruling, the 3rd applicant proffered an appeal against the same. The applicants then filed a Memorandum of appeal and sought to stay proceedings and execution of the ruling pending the determination of the appeal. The applicants then sought the typed ruling to prepare the record of appeal only to discover that the memorandum of appeal was never allocated a case number. Counsel intimated to the court that the efforts to have the error corrected have not borne any fruits and annexed a copy of the letter dated 30th August 2023 as evidence of the same. It is the applicant’s case that as it stands, there is no proper appeal before this court and further, that the ruling that stayed the proceedings was pegged on the ground that the memorandum of appeal was properly filed and served therefore the applicants risk having the appeal struck out.

5. Counsel urged that the respondent will not suffer any prejudice if the application is allowed and, that the application was made without unreasonable delay. He stated that if the decretal amount is paid to the respondent, the intended appeal will be rendered nugatory and the applicant will suffer irreparable loss and damage. He urged the court to allow the application as prayed.

Respondent’s Case 6. The respondent opposed the application vide her replying affidavit dated 26th September 2023. She urged that the instant application is misconceived, an abuse of court’s process and without merit to neither aid fairness nor judicial fair administration. Further, that prayer of the applicant being granted leave to file an appeal out of time does not meet the threshold established by law and precedent. The respondent urged that there has been inordinate and excessive delay by the applicants to follow the orders. Due to the indolence on the part applicants, the case has been in court since 2021 to date and this has caused loss on the part of the respondent. The said application is devoid of merits in that the defendants have not seriously demonstrated on the face of the application, as legally required, that there is any just cause to warrant leave to file an appeal. Counsel urged the court to dismiss the application in its entirety.

Analysis & Determination 7. Upon considering the application and the responses thereto, the following issues arise for determination;1. Whether the applicant should be granted leave to file the appeal out of time.

Whether the Applicant should be granted leave to appeal out of time 8. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that: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.

9. 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. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR.They include the following:i)The period of delay;ii)The reason for the delay;iii)The arguability of the appeal;iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;v)The importance of compliance with time limits to the particular litigation or issue; andvi)The effect if any on the administration of justice or public interest if any is involved.

10. The applicant alleges that the reason for the delay was failure to issue the appeal with a case number and further, that a file was never physically opened. From the contents of the supporting affidavit to the application, the applicant has laid down the chronology of events that resulted in the delay. He urged the court required the office of the attorney general to pay filing fees of Kshs. 1,550/-, contending that this was despite the fact that they were exempted from paying court fees and upon bringing the issue to the attention of the deputy registrar, the memorandum was then filed on her directions.

11. Vide a ruling dated 7th December 2022 the court granted the applicant stay of execution of the ruling dated 17th September 2021 pending the determination of the appeal. The Applicant then sought for typed copies of the proceedings and a certified copy of the judgement vide two letters dated 27th May 2023 and 6th July 2023 which proceedings were furnished on 22nd August 2023. The applicant then notified the deputy registrar that there was no physical court file opened with regards to the appeal.

12. Upon considering the facts presented by the applicant, it is my considered view that the delay has been explained to the satisfaction of the court. I note that the memorandum of appeal was stamped at the high court on 29th September 2021 but had no assigned case number.

13. I have considered the pleadings and responses thereto and I find that it is in the interests of justice to allow the application as prayed. I hereby grant the applicant leave to file the appeal out of time and the memorandum of appeal dated 16th September 2021 is deemed to be properly filed and served on the respondents.

14. I direct the Deputy registrar to allocate a proper case number to the above Memorandum of Appeal dated 16/9/2021 and filed on 29th September, 2021.

15. Costs shall be in the cause.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 7THDAY OF NOVEMBER,2023. ………………………………………R.NYAKUNDIJUDGE