[2022] KEHC 1974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

MISCELLANEOUS CIVIL CASE NO. E069 OF 2021

ISAIAH WAWERU NGUMI.........................................................................APPLICANT

VERSUS

FRANK KINYANJUI MWAURA.............................................................RESPONDENT

RULING

1. What is before court is an unopposed Notice of Motion application dated 31st December, 2020. By that application, ISAIAH WAWERU NGUMI (Waweru) seeks the following orders:-

1. THAT the honourable court be pleased to grant leave to applicant/appellant to file and issue his memorandum of appeal dated 31st December, 2020 out of time.

2. THAT the leave so granted act as stay of any proceedings consequential to the order issued by the honourable Resident Magistrate, Mr. H.I. Mwendwa in PMCC No. 171 of 2012 at Kikuyu Law Courts on 31st December, 2017.

3. THAT this honourable Court be pleased to grant leave to the applicant/appellant to enjoin the honourable the Attorney General of the Republic of Kenya in the intended appeal.

4. THAT the memorandum of appeal be deemed as filed and issued upon the payment at the requisite court filing fees.

2. The affidavit in support of that application is sworn by Waweru. He deponed that the order he wishes to file an appeal against was issued on 31st December, 2017. He instructed his then advocate to file an appeal against it but he failed to do so. He sought leave of the Kikuyu Senior Principal Magistrate’s court to file his appeal out of time and that leave was granted on 5th November, 2019 by the Magistrate’s court. He was unable to file that appeal despite obtaining that leave because he could not obtain the magistrate’s court file to be able to extract the order being appeal. That thereafter, when COVID-19 pandemic affected the country, he was unable to file the appeal.

ANALYSIS

3. Section 79G of the Civil Procedure Rules provides that an appeal from subordinate court to the High Court should be filed within 30 days. That Section is in following terms: -

“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for 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.”

4. If a party fails to file an appeal within that prescribed period the proviso of that section states that an appeal can be admitted out of time if the appellant shows good and sufficient cause.

5. A close examination of that section reveals that for a party to seek leave to appeal out of time, there must be an existing appeal which such a party seeks it be admitted out of time. That is clear from the wording of that section “may be admitted”. It is also clear that an appeal must be on record awaiting to be admitted because the section refers to the applicant seeking to appeal out of time as “an appellant”. In the case JAMES NJAI GITHUI VS. EQUITY BANK LIMITED (2020) eKLR the court was of a similar view when it stated that:-

“The proviso foresees a situation where an appellant has filed an appeal, then seeks to have it admitted out of time by an application seeking extension of time and explaining the reasons for delay. Hence I find the words ofEmukule Jin theGERALD LIMBINE case above necessary.

“My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:-

‘Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily’

It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”

6. The Court of Appeal held the same in the case JONATHAN KARANJA T/A JONATECH ENTERPRISES VS. AGS WORLDWIDE MOVERS (K) LIMITED & 2 OTHERS (2022) KECAas follows:-

“…In my considered judgment, the fate of the application before me depends on proof that the Applicant has signified his intention to appeal by filing and serving his notice of appeal on the Respondent as required under the Rules. Only then could he be said to have laid the basis for approaching the Court for orders to cure any delay in lodging his Notice of Appeal. No such notice has been filed, which dispossesses me of the otherwise unfettered discretion in determination of the application before me.

4. Citing the Supreme Court decision inNICHOLAS KIPTOO ARAP KORIR SALAT V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND 7 OTHERS [2014] eKLR, this Court had this to say inAPUNGU ARTHUR KIBIRA V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND 2 OTHERS [2018] eKLR:-

“A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite.”

5. Accordingly, the application is fatally defective and cannot stand.Indeed, I am at a loss as to what is sought to be achieved by the intended appeal in respect of which the Applicant has not given notice. Neither is there a Memorandum of Appeal or othermaterial on record to aid in determining the probability of success of such an appeal.”

7. It is also worth noting that the order which Waweru wishes to appeal was made in 2017. There is insufficient reason given why there is a delay of 3 years before seeking this court’s leave to appeal.

8. The application is misconceived and fatally defective. The notice of motion dated 31st December, 2020 is dismissed with no orders as to costs.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For applicant : - Present

For Respondent : - Absent

RULINGdelivered virtually.

MARY KASANGO

JUDGE