[2013] KEHC 3193 (KLR)

REPUBLIC OF KENYA

High Court at Embu

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FELISTA CIUMWARI NGARI..............…….....................)

ROSE JANE NJOKI BERNARD……………………….) APPLICANTS

V

DAMIANOKARIUKINGARI.............................................RESPONDENT

R U L I N G

The applicants have filed this Notice of Motion dated 11/2/2013 for leave to file appeal out of time. It is brought under Section 3A and 79 G of the Civil Procedure Rules. They also seek other two prayers which are:-

(a)There be a stay of execution of the said judgment pending the hearing and determination of the intended appeal.

(b)The transfer of Land Parcel No. Evurori/Kathera/144 to the respondent be annulled and/or cancelled.

The main grounds are that the applicants were supplied with proceedings and Ruling late and that the applicants have good grounds of appeal. The application is supported by the affidavits of both applicants and Mr. Kathungu and a supplementary affidavit by Mr. Kathungu. The respondent filed a replying affidavit opposing the application. BothCounsels filed written submissions. Mr. Kathungu submitted that the contents of their affidavits were satisfactory. The delay was not of their own making. He urged the court to grant the orders sought.

Ms. Karubi, Mwangi for the respondent opposed the application saying that the application for proceedings and judgment was made 1 ½ months after the delivery of judgment. And that the applicants did not require proceedings and judgment but an order or decree to file the memorandum of appeal. On this he cited the case of

CHEGE VS SULEIMAN Civil Appeal No. 12/1987 [1988] KLR

KYUNA VS KYEMA Civil Appeal No. 16/1988 KLR

Section 79G of the Civil Procedure Act provides:-

“Every appeal from the 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.”

The affidavit of Mr. Kathungu sworn on 11/2/2013 has in detail given a scenario of the prevailing circumstances in this case. I have looked at the copy of judgment at page 9. It shows that the said judgment was delayed owing to transfer of magistrate. The date is shown as 2/5/2012. It is not even indicated if it was delivered on 28/6/2012 but its dated 28/6/2012. And on this date its clear that only the petitioner was present. The protestors were absent.Paragraph 4 & 5 of Mr. Kathungu's affidavit are very critical to this application. It is clear judgment was not delivered on 21/3/2013 as initially indicated. How was the next date of delivery of the judgment communicated to the parties? I note that the respondent was in person.

In the absence of the protestors on 28/6/2012 it was the duty of the court to clearly indicate on the record that the protestors had been notified of the date of judgment (and indicate the mode of communication) and were not in court and the court would proceed to deliver the judgment their absence notwithstanding. Therefore there is nothing to challenge Mr. Kathungu's averment that he only learnt of the delivery of the judgment on 8/8/2012 when he went to the registry at Runyenjes Court. He did apply for the proceedings the same date (JK1) and it was not until 29/1/2013 that proceedings were sent to him by post.

It is also to be noted that since counsel for the protestor and even the protestors were not notified and were not in court for this judgment it was important for them to see the judgment and proceedings to be able to decide on the way forward. The authorities cited by the respondent's counsel are only applicable where parties were aware of the delivery of the Ruling or Judgment. In the case of

JOSEPH OWOTSI WALWANGA VS KENYA COMMERCIAL BANK LTD & ANOTHER Civil Application No. Nairobi 371/1999 [1999] LLR 1122 (CAK)it was held

“Absence of the applicant at the time of delivery of judgment without notice is a sufficient reason for extension of time”.

And in JULIUS ORINA MANWARI & ANOTHER VS COMMISSIONER OF LANDS Civil Application No. NAIROBI 141/2003 U/R –It was held that where the Ruling was delivered in the absence pf the parties, the application for for the extension of time was allowed.

In the circumstances I am satisfied that the applicants have fully explained the delay. I have equally looked at the record and the grounds and I am satisfied they have an arguable intended appeal.

I will therefore allow the application in terms of prayer No. 1. The appeal to be filed within 21 days. Prayers (b) and (c) may only be made when the appeal has been filed. The parties herein are siblings. Each party to bear his/her own costs.

DELIVERED, DATED AND SIGNED AT EMBU THIS 16TH DAY OF MAY 2013.

H.I. ONG’UDI

J U D G E

In the presence of:-

Mr. Kathungu for Applicant

Ms. Mwangi for Respondent

Njue CC