[2017] KEHC 2074 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC APP NO. 157 OF 2017

ELITE STUDIOS LIMITED....................................................APPLICANT

VERSUS

BARCLAYS BANK OF KENYA LTD...............................RESPONDENT

RULING

This is a ruling on an application dated 12th April, 2017 under Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules seeking leave to file an appeal out of time. The Application is supported by the Affidavit of James Mang’erere, advocate for the Applicant.

The judgment sought to be appealed against was delivered on 21st November, 2016 and the instant application was filed on 12th April, 2017. The reason advanced for the delay is that due to the December vacation, the appellant took some time before giving instructions to the advocates on record for the purpose of the appeal.

This Application is opposed by the Respondent via a Replying Affidavit of Alfred Deya advocate for the Respondent dated 13th June, 2017 wherein he pleaded with the court to take judicial notice of the fact that December Vacation Holiday applies only to the judicial staff and should not be invoked as an excuse for not complying with the strict timelines for filing an appeal. The Respondent further avers that the application is an afterthought having been filed on 19th April, 2017, four months after the statutory period for filing an appeal had lapsed which delay is oblique and not sufficiently explained.

I have read and considered the application, the affidavits on record and the submissions made by Counsels for both parties in court on 22nd June, 2017.

Section 79G of the Civil Procedure Act provides for the timelines for filing an appeal wherein it states 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.”

Order 50 Rule 5 of the Civil Procedure Rules provides that

”Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:

Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

It is trite law that extension of time to file an appeal is a discretionary remedy which the court ought to exercise judiciously and in accordance with the law. The law provides that appeals from subordinate courts to High court should be lodged within 30 days. The only consideration for accepting an appeal out of time is where the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. Therefore, the issue which this court has to determine is whether the applicant herein has satisfied the court that he has a sufficient cause for not filing the appeal in time. The judgment sought to be appealed against was delivered on 21st November, 2016 whereas the instant application was filed on 19th April, 2017. The reason advanced for the delay is that due to the December vacation, the Applicant took time to give further instructions to the Advocates on record.

When computing time, the only period exempted is the period between 21st December and 13th January as provided in Order 50 Rule 4 of the Civil Procedure Rules which provides,

“4. Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act”.

The Applicant has not explained to the satisfaction of this Court why he could not file the application after the December holiday was over, he waited until 19th April, 2017.

The Supreme Court Decision in Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLRlaid down the guidelines for extension of time to file an appeal out of time where it was held that , “As regards extension of time, this Court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:

“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extensionand whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.

“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:

(a) 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

(b) a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;

(c) whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;

(d) where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;

(e) whether there will be any prejudice suffered by the respondents, if extension is granted;

(f) whether the application has been brought without undue delay;and

(g) Whether in certain cases, like election petitions, public interest should be a consideration for extending time”[emphasis supplied].”

The requirement of an applicant to give a satisfactory explanation for delay in filing of the appeal in time cannot be over emphasized. The Court of Appeal in the Case of Stanley Kahoro Mwangi & 2 others v. Kanyamwi Trading Company Limited (2015) eKLRalso held that “The principles guiding the court on an application for extension of time premised upon Rule 4 of the Rules are well settled and there are several authorities on it. The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered. It is, therefore, upon an applicant under this rule to explain to the satisfaction of the Court that he is entitled to the discretion being exercised in his favour.”

It is the finding of this court that though there was delay in filing of this application, justice would better be served if leave is granted to the applicant.

In the interest of justice, I allow the application dated 12/4/2017 with an order that costs of Ksh. 10,000 be paid to the Respondent within 7 days.

The Appeal to be filed within 14 days from the date of this ruling.

Dated, Signed and Delivered at Nairobi this 6th Day of October, 2017.

………………………

L. NJUGUNA

JUDGE

In the Presence of

…………………. for the Applicant

………………. for the Respondent