[2022] KEHC 12489 (KLR)

Eteli Suing thro’ Moses Eipa Obwongon v Marula Estate Ltd & another (Miscellaneous Civil Application 5 of 2020) [2022] KEHC 12489 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12489 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Civil Application 5 of 2020

RM Mwongo, J

June 16, 2022

Between

Emmanuel Eteli Suing thro’ Moses Eipa Obwongon

Applicant

and

Marula Estate Ltd

1st Respondent

Kenya Wildlife Service

2nd Respondent

Ruling

1. The notice of motion herein dated 19th February 2020 seeks the following substantive orders:1. That the application be certified as urgent, service be dispensed with thereof and the same be heard ex-parte in the first instance.2. Thatthe applicant herein be granted leave to appeal out of time against the judgment and decree in Naivasha CMCC 509 of 2014 delivered on the 14th of January 2020. 3.The costs of this application abide the appeal.The application is premised on Sections 1A, 1B, 3A , 63(e) 79 G and 95 of the Civil Procedure Act, Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules.

2. By way of brief background, the applicant successfully sued the respondents following injuries sustained when his 6 year old son was walking to school through the 1st respondent’s land when he was injured by a buffalo. By a judgment dated 20th December 2019, but delivered on 14th January, 2020, the plaintiff was awarded Kshs 305,000/- less 40% contribution leaving an amount of Kshs183,000/- due and payable to him.

3. Dissatisfied, the applicant filed a draft memorandum of appeal on 20th February, 2020 challenging the apportionment of liability against him, when he was not a party to the lower court suit. The appeal is out of time by 35 days (14th January to 20th February).

4. Amongst his grounds in the application are: That the delay in lodging was occasioned by the Applicant seeing that he hails from Lodwar and only managed to give instructions on the February 19, 2020; That the delay in lodging the appeal was purely excusable and the applicant prays for pardon and prays that the court should not punish him for the delay; That the application has been made in good faith and the applicant is ready to comply with any condition that the honourable court shall give.

5. The 1st respondent opposes the application on the grounds that it has no merits; it is incompetent, bad in law, frivolous and an abuse of the court process; that no good reason has been offered for the inordinate delay by the Applicant; That the application is not made in good faith; and that the draft Memorandum of appeal does not raise reasonable grounds of appeal.

6. As directed by the court the parties filed written submissions which essentially elaborate on the grounds and include authorities.

7. The issues are: Whether the delay is inordinate or properly explained;

What is the degree of prejudice which will be suffered by the respondent if the application is granted

Whether the appeal has reasonable chances of success

Delay 8. The applicant submits that the length of delay in not unreasonable and the reason is that the applicant only managed to visit the counsel’s office on 19th February and draft memorandum of appeal immediately filed the next day. He cites James Njenga v Samwel Ngetich [2018] eKLR where Mumbi J. considered an extra 15 days from the statutory limit as not unreasonable.

9. The respondent contends that extension of time is at the discretion of the court; but that the Applicant has not offered reasonable explanation as to why the application was late; and what efforts were made by counsel to reach the applicant between 14th January 2020 and 14th Feb 2020. The 1st respondent relies on Major Joseph Mweteri Igweta v Mukira M’ethare (Attorney General [1999] eKLR, where the court held that once there was non-compliance the burden was on the party seeking indulgence. Here, no evidence or extenuating circumstances were given for the court to exercise its discretion.

10. The exercise of that discretion is guided by the principles set out in the following authorities: Leo Sila Mutiso v Rose Wangari Mwangi Civil Appeal No. Nai. 255 of 1997 which held:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. ..”.Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR where it was stated:“... A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour…”.Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission & 7 others; where the Supreme Court held:(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.(5)Whether there will be any prejudice suffered by the respondent of the extension is granted.(6)Whether the application has been brought without undue delay; and(7)Whether in certain cases, like election petition, public interests should be a consideration for extending time.”

11. In my view, the delay does not appear unreasonable. The delay of 35 days is not inordinate. I note from the applicant’s supporting affidavit that he is a resident of Lodwar, in Turkana County. He says he arrived in Nairobi on 19th February to his counsel’s office and when the judgment was explained to him, he was dissatisfied. I am satisfied with that explanation. It is common knowledge that Lodwar is not a few minutes away from Nairobi, and that it can take a great deal of time to organize oneself to travel from there.

12. I also note that once the applicant visited his counsel, he gave instructions which were acted upon the following day.

What is the degree of prejudice which will be suffered by the respondent if the application is granted? 13. The applicant submitted that the respondent will not be prejudiced. The applicant has collected the decretal sum, but costs in the lower court are yet to be collected. The applicant proposes that the costs be held as security by the respondent. They argue that the fact of payment of the decretal sum is not a proper basis for denial of the right of appeal.

14. The respondent submits that the decretal sum was received unconditionally in full and final settlement of the judgment. They accept that they have not paid the applicant’s court costs. They exhibited a copy of the payment cheque as ‘LWK 1’. They also attached correspondence from the applicants counsel requesting the payment of the decretal sum (‘LWK2’).

15. That correspondence in addition clearly shows that the unpaid court costs are Kshs 130,110/- . However, there is no indication that the payment made to the applicant was made or received in full and final settlement, or that it was being paid on any conditions, including a condition not to appeal.

16. I have taken these into account and find that there is an amount of money held by the respondent, in the event they win the appeal. No prejudice will be suffered by them.

17. I further note from the draft memorandum of appeal filed on 20th February, 2020, that the gravamen of the appeal is that the applicant was condemned in paragraph 8 of the Judgment to shoulder a 40% portion of liability for his son’s misadventure with the buffalo. This is despite the fact that he was not a party to the suit, except in the capacity as next friend – which fact is clearly set out in the title to the proceedings. The applicant thus appears not to have had an opportunity to defend himself. This represents a reasonable ground of appeal which should be ventilated.

Disposition 18. In light of the foregoing, I accordingly allow the application, and direct that the applicant shall file the Record of Appeal within 45 days from the date of this Ruling, and expeditiously prosecute the same.

19. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 16TH DAY OF JUNE, 2022. ...................................R MWONGOJUDGEDelivered in the presence of:Mungai holding brief for Amboko for the ApplicantMburu for the 1st RespondentNo representation for the 2nd RespondentQuinter Ogutu -Court Assistant