[2023] KEHC 26619 (KLR)

Haria v Credit Bank Limited (Miscellaneous Civil Application E104 of 2023) [2023] KEHC 26619 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26619 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application E104 of 2023

DKN Magare, J

December 8, 2023

Between

Bhavesh Nemchand Haria

Applicant

and

Credit Bank Limited

Respondent

Ruling

1. This is an application for extension of time within which to Appeal. The same was filed on 10/8/2023. The Judgment was delivered on 24/5/2022.

2. The Applicant stated that they learnt of the Judgment on 5/4/2023. The proceedings were availed on 20/7/2023.

3. The question in my mind is whether the delay is:-i.Inordinateii.Explainediii.Plausible appeal.

4. The delay from the date of delivery to the date of filing is one year and 3 months. From the date they admitted to have known if the Judgment it is 4 months, that is April to August 2023. Even if the leave of notice explains the delay between 24/5/2022, the delay between May 2023 is not explained.

5. Proceedings are not necessary for the filing of the Appeal. Equally it is not possible o know the plausibility of the Appeal; if the Judgment is not enclosed. On all the three limbs, the application failed.

6. I wish to find out that parties failed to turn up for the hearing of the Application. I had the option of dismissing the application for want of prosecution. However, this will not help in backlog reduction as it will come back. I opted for the high road.

7. I agree with and defer to the supreme court decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014]eKLR, which the Applicants relied on and in which, the Supreme Court stated as doth:-“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of 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 for 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.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

8. The law in respect to extension of time was captured succinctly in a decision referred to by the Applicant, that is Mombasa County Government v Kenya Ferry Services & another [2019] eKLR, where the Supreme Court (Ibrahim, Ojwang, Wanjala, Njoki, Lenaola, SCJJ) stated as doth: -“[26]Further, in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. no 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:“[24]a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.”(27)In the present case, we note there is no certificate of delay from the Deputy Registrar of the Court of Appeal. Further, we note that the Applicant has not annexed the typed proceedings and the decree to confirm that the same were obtained on 28th June 2018 and 5th July, 2018 respectively.”

9. It is therefore agreed that extension of time is discretionary. In the case of Republic v Non-Governmental Organizations Co-ordination Board & anotherex-parte Transgender Education and Advocacy & 3 others [2014] eKLR the court, Justice G V Odunga, as he then was, addressed discretion in thefollowing words.“It is now trite that there are circumstances under which the Court would be entitled to intervene even in the exercise of discretion. This Court is empowered to interfere with the exercise of discretion in the following situations:(1)where there is an abuse of discretion;(2)where the decision-maker exercises discretion for an improper purpose;(3)where the decision-maker is in breach of the duty to act fairly;(4)where the decision-maker has failed to exercise statutory discretion reasonably;(5)where the decision-maker acts in a manner to frustrate the purposeof the Act donating the power;(6)where the decision-maker fetters the discretion given;(7)where the decision-maker fails to exercise discretion;(8)where the decision-maker is irrational and unreasonable.”

10. I dare add that when the court is making a decision based on discretion, it must bear the foregoing factors in mind. Discretion must as a corollary be exercised judiciously, not whimsically or capriciously. The 4 limbs for extension of time must be met. In the case of the Seventh Day Adventist Church East Africa Ltd. &anotherv M/S Masosa Construction Company Civil Application no Nai. 349 of 2005, Waki JA, as he then was held that:“As the discretion to extend time is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant; the period of delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, whether the matter raises issues of public importance are all relevant but not exhaustive factors…In an application for extension of time, each case must be decided on its own peculiar facts and circumstances and it is neither feasible nor reasonable to lay down a rigid yardstick for measuring periods of delay as explanations for such delays are as many and varied as the cases themselves…The ruling striking out the appeal is not only necessary for exhibiting to the application for extension of time but also for consultations between the applicant’s counsel and their clients and the fact that the ruling was returned to Nairobi for corrections is a reasonable explanation for the delay… Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.”

11. In the end, I find that the application is unmerited since the delay was inordinate, unexplained and there is no evidence of a plausible appeal. I dismiss the same in limine.

12. Given that the respondent did not attend court, each party shall bear their own costs.

Determination 13. The upshot of the foregoing is that the application dated and filed on 10/8/2023 lacks merit and is accordingly dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII ON THIS 8TH DAY OF DECEMBER 2023. KIZITO MAGAREJUDGEIn the presence of:-No appearance for the ApplicantNo appearance for the RespondentCourt Assistant - Roselyn