[2022] KEHC 10950 (KLR)

Ireri v Attorney General & another (Miscellaneous Application E024 of 2022) [2022] KEHC 10950 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10950 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Application E024 of 2022

EKO Ogola, J

July 12, 2022

Between

Joseph Gichuku Ireri

Applicant

and

Attorney General

1st Respondent

New Kenya Co-operative Creameries

2nd Respondent

Ruling

1. By way of notice of motion dated February 14, 2022, the applicant prays the following orders;1)The applicant be granted leave to appeal out of time against the judgment and order given on the 2nd day of February 2021 by Hon. Wairimu.2)That there be stay of court proceedings, judgement, warrant and execution pending the hearing and determination of this application interpartes.3)That cost of the application be provided for.

2. The application is premised on the grounds set out therein and the deponements in the affidavit in support of the application.

3. A brief summary of the facts leading upto the application is that the applicant instituted a suit being Eldoret Chief Magistrates’ Civil case of 767 of 2016 seeking damages for injuries to her reputation, damages for unlawful confinement and special damages for defending the criminal case, cost and interest. Judgment was delivered on February 2, 2021and the suit was dismissed. On February 4, 2022

Applicant’s Case 4. The applicant’s case is that she was not aware that the court had delivered judgment until warrants were issued against her on February 4, 2022. She was never informed by her advocate of the judgment and this according to him was an error committed by counsel and should not be visited on an innocent client. Counsel for the applicant cited section 3A and 93 of the Civil Procedure Act. She also relied on order 50 rule 6 of the Civil Procedure Rules. She submitted that enlargement of time is discretionary and cited Fidelity Commercial Bank Ltd v Azim Jiwa Rajwani (2014) eKLR. she submitted that the respondents would suffer no prejudice if the leave is granted and cited the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others (2014) eKLR submitting that the respondents would suffer no prejudice if the leave is granted.

5. The applicant maintained that the issues raised in her intended appeal were weighty and so she should be granted the opportunity to pursue the appeal. She contends that she has an arguable appeal and that taxation was done without her notice and was read in her absence. Further, the affidavit that was attached thereto was mischievous, false and an abuse to the court process.

Respondent’s Case 6. The 2nd respondent filed a replying affidavit and submissions in opposition to the application. Learned counsel for the 2nd respondent stated that the court delivered judgment in presence of the applicant’s advocate on 2nd February 2021 and the applicant was in place to seek leave to file her appeal out of time but she did not. Instead she approached the court a year later. The case of Athuman Nusura Juma vs Afwa Mohammed Ramadhan CK No. 277 of 2015 where the court set out the considerations when determining an application for extension was cited. The considerations included:a)Length of delay involvedb)Reason(s) for the delayc)The possible prejudiced)The conduct of the parties

7. The respondent’s case is that one year is too long. Relying on section 79G of the Civil Procedure Act he submitted that equity des not aid the indolent. The applicant has not given a plausible reason for delay. He cited the case of James Kanyiita Nderitu vs AG and another, Petition 180 of 2011 where the court held;“Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under section 84 of the constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The Court is obliged to consider whether justice will be served by permitting a respondent, whether an individual or the State in any of it manifestations, should be vexed by an otherwise stale claim. Just as a petitioner is entitled to enforce its fundamental rights and freedoms, a respondent must have a reasonable expectation that such claims are prosecuted within a reasonable time.”

8. The application, according to the respondent, is intended to delay the conclusion of the matter. The applicant was reluctant to satisfy the decretal sum and the matter was mentioned twice summoning the applicant to show cause. On November 2, 2021 and December 7, 2021, Counsel for the applicant was in court. Due to persistent disregard of the summons, the court issued a warrant of arrest against the applicant. According to the respondent the applicant filed the present application to circumvent the law. The applicant’s hands are full of dirt and the application as filed is unmerited. He prayed the same be dismissed with costs.

9. Upon perusing the application, responses and submissions, I have determined the following issues for submissions;a)Whether leave to appeal out of time should be granted.b)Whether stay of execution orders should be granted

Whether leave to appeal out of time should be granted 10. The statutory provisions regarding an appeal from the judgment or decree of a subordinate court to the High Court are contained on section 75G of the Civil Procedure Act which provides that:79G. 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.

11. In Edith Gichugu Koine vs. Stephen Njagi Thoithi[2014] eKLR, the court of appeal pronounced itself on the issue of enlargement of time as follows;“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...”The court is therefore to consider;a)The period for delayb)The reasons for the delayc)The prejudice to the respondentd)Whether the matter raises issues of public importance.

12. The applicant took a whole year before seeking an appeal. He contention that she was unaware of the decision and that she was not present when it was delivered does not hold water as the advocate on record for the applicant was present. Had she presented any evidence of correspondence with her advocate, I would be more inclined to believe that she had attempted to find out the outcome of the matter. However, there is no evidence of any correspondence to that end.

13. The applicant has not made any effort to prove the alleged falsehoods in the affidavit of service. The process server was not called for cross examination by the applicant. I also note that annexure JGI 6, the return of service, evidenced that she was made aware of the pending judgment. I find that the applicant’s reasons for delay in filing the appeal are untenable.

14. Clearly the applicant is delaying the respondent from enjoying the fruits of judgment. I find that the respondent(s) will be prejudiced by the applicant’s failure to satisfy the decree. From the conduct of the applicant it is clear that the discretion of the court cannot be exercised in her favour.In the premises the application fails in its entirety and is dismissed with costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 12TH OF JULY 2022. E. K. OGOLOAJUDGE