[2022] KEHC 15866 (KLR)

Gachoka & another v Nkonge (Suing as the personal legal representative of the Estate of Amon Mutari Nkonge (Deceased)) (Miscellaneous Civil Application E569 of 2022) [2022] KEHC 15866 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15866 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Miscellaneous Civil Application E569 of 2022

JK Sergon, J

December 1, 2022

Between

David Ngata Gachoka

1st Intended Applicant

Pauline Wanjiku Ngugi

2nd Intended Applicant

and

Henry Nkonge

Respondent

Suing as the personal legal representative of the Estate of Amon Mutari Nkonge (Deceased)

Ruling

1. David Ngata Gachoka and Pauline Wanjiku Ngigi, the 1st and 2nd applicants respectively took out the motion dated September 26, 2022 whereof they sought for the following orders:i.That this honourable court be leased to enlarge time and grant leave to the applicants to file an appeal out of time against the ruling/orders of Honourable E. Kagoni, PM delivered on August 5, 2022 in Milimani CMCC 2142 of 2019, Henry Nkonge (suing as the personal legal representative of the estate of Amon Mutari Nkoge (Deceased) v David Ngata Gachoka and Pauline Wanjiku Ngigi.ii.That pending the hearing and determination of this application, there be an order for stay of further proceedings in Milimani CMCC 2142 of 2019, Henry Nkoge (suing as the personal legal representative of the estate of Amon Mutari Nkoge (Deceased) v David Ngata Gachoka and Pauline Wanjiku Ngigi.iii.That the costs of this application be provided for.

2. The applicant filed the affidavit sworn by Mugo Githinji in support of the motion. When served with the application, Henry Nkonge, the respondent herein, filed a replying affidavit he swore to oppose the same.

3. I have considered the grounds set out on the motion and the facts deponed in the rival affidavits. I have also considered the rival oral submissions of learned counsels.

4. The applicants are basically seeking for two main orders. First, is an order for leave to appeal out of time against the ruling of the trial court pronounced on August 5, 2022 and secondly is for an order for stay of further proceedings in Milimani CMCC No 2142 of 2019 Henry Nkonge v David Ngata and another pending appeal.

5. It is the submission of the applicants that the trial magistrate dismissed their application to admit their defence out of time prompting them to file the instant application seeking for the order to be set aside on appeal. It is further the submission of the applicants that unless the order is granted they will lose their right of hearing on defence and that the intended appeal will be rendered useless.

6. It is pointed out by the applicants that they failed to file the appeal within time because they were unable to access the Judiciary e-filing system on 2nd to September 5, 2022 for purposes of filing their memorandum of appeal.

7. The respondent averred in the replying affidavit that the applicants filed the instant application in bad faith. The respondent further argued that the application does not meet the threshold for an application for leave to file an appeal out of time and that for stay of proceedings.

8. It is pointed out that the applicants have failed to provide plausible reasons to be granted the orders sought. The respondent’s submission that the applicants were indolent hence they should not benefit from the court’s discretion.

9. Having considered the material placed before this court plus the oral submissions made by learned counsels, I am persuaded that the applicants have given plausible reasons which prevented them from appealing within time against the ruling of the trial court.

10. Consequently, I grant them leave of 10 days to file an appeal out of time against the trial court’s ruling delivered on August 5, 2022. I am also convinced that unless an order for stay of further proceedings in the trial court is granted the suit will proceed for hearing without the applicants presenting their defence. The failure to present one’s defence is a substantial loss in that there is no compensation for losing a right of hearing.

11. In the end, the motion dated September 26, 2022 is allowed thus giving rise to issuance of the following orders:i.Leave is granted to the applicants to file an appeal out of time against the trial court’s ruling delivered on August 5, 2022 within 10 days.ii.An order for stay of further proceedings in Milimani CMCC No 2142 of 2019 pending the hearing and determination of the intended appeal is granted.iii.Costs of the motion to abide the outcome of the intended appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2022. JK SERGONJUDGEIn the presence of:............for the 1st intended appellant/applicant............for the 2nd intended appellant/applicant............for the respondent.