[2022] KEHC 2776 (KLR)
The court found that the applicants provided a reasonable and plausible explanation for the delay in filing the appeal, namely the closure of their advocate's offices due to the Covid-19 pandemic. The court took judicial notice of the widespread disruptions during the relevant period and determined that the delay...
Source-derived case information.
- Citation
- [2022] KEHC 2776 (KLR)
- Parties
- Applicant: James Mwaura & Another; Respondent: Mohamed Fadhil; Respondent: Stephen Ndungu Waigwa
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E063 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Extension of Time, Leave to Appeal, Covid 19 Disruption
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwaura & Another
Applicant
Mohamed Fadhil
Respondent
Stephen Ndungu Waigwa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether leave to file an appeal out of time should be granted in light of the Covid-19 pandemic office closure.
- 3 Whether the respondents would suffer prejudice if the application is allowed.
Ratio Decidendi
The court found that the applicants provided a reasonable and plausible explanation for the delay in filing the appeal, namely the closure of their advocate's offices due to the Covid-19 pandemic. The court took judicial notice of the widespread disruptions during the relevant period and determined that the delay was not attributable to the applicants or their counsel. The court further held that there was no evidence of prejudice to the respondents, as the payment made was pursuant to the court's judgment and any further orders could be made should the appeal succeed. Consequently, the court exercised its discretion to allow the application and granted leave to file and serve the...
Court Disposition
application allowed
Orders
- The applicants are granted leave to file and serve the memorandum of appeal within 14 days from the date herein.
- The respondents shall have the costs of this application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISC CIVIL APPLICATION NO.E063 OF 2020
JAMES MWAURA & ANOTHER.............................................................APPLICANTS
VERSES
MOHAMED FADHIL..........................................................................1ST RESPONDENT
STEPHEN NDUNGU WAIGWA.........................................................2ND RESPONDENT
RULING
1. By their Notice of Motion dated 15th July 2020 the applicants pray for orders that leave be granted to lodge an appeal out of time. The application is supported by the sworn affidavit of Mongare Gekonga, their counsel on record, dated the same date.
2. The said advocate deponed that judgement in this matter was delivered on 6th March 2020 and thereafter they closed their offices on 18th March 2020due to Covid pandemic. As a result of that they were unable to communicate to their clients concerning the import of the judgement.
3. He went on to state that when they resumed on the 15th June 2020 they sought to advice their clients who were not happy with the trial court’s decision. Consequently, they instructed him to appeal but by then time had already lapsed for filing an appeal.
4. The applicant has attached a copy of an internal memo from his office advising the staff concerning the closure of the office because of Covid 19 as well as the draft memorandum of appeal. He deponed that the reason for not filing the appeal within the stipulated time were beyond him as the office was generally closed for the reason of Covid 19.
5. The respondent through the sworn affidavit of Kelvin Ngure has opposed the application terming it frivolous and a total abuse of the courts process. That already the respondent has paid the sum of Kshs214, 300 as directed by the court in its judgement and that effectively they have closed their file. The above amount was duly received by the applicants through their advocates without any complaint or objection.
6. For the above reasons it ought to be deemed that the applicants were satisfied with the judgement. That if the court is inclined to allow the application then the applicants ought to provide security by depositing the above amount already in their custody in a joint interest account in the names of the two law firms.
7. The court directed the parties to file written submissions which they have complied and I have gladly perused them. The same mirrors what they have deponed in their rival affidavits essentially.
8. The issue of granting leave to file an appeal out of time was clearly spelt out in the case of Mwangi v. Kenya Airways ltd (2003) klr where the test applicable as per the court of appeal is as hereunder.;
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
9. This court is inclined to allow the application for the reasons that the explanation by the applicants is reasonable and plausible. The novel Covid 19 was to say the least disrupted our status quo and the period mentioned by the applicant of March all the way to around August 2020 was tough for everyone. This the court takes judicial notice.
10. It shall therefore in my view prejudice the administration of justice should the court fail to allow the application. There is no evidence that the fault was with the parties’ least of all the counsel.
11. I agree with the respondent that having settled its part of the judgement, the matter ought to rest. The same has not been consented to by the applicant since there is no such evidence. The door it appears is still open to them to move to the next court which they have chosen to do.
12. There is no prejudice the respondents stand to suffer. The amount they paid was as per the courts decision and should the appeal succeed then the court shall have the liberty of issuing further orders and directions. For now, it is not within the province of this court to discuss whether the appeal is arguable or not.
13. For the above reasons, the application is hereby allowed, the applicant granted leave to file and serve the memorandum of appeal within 14 days from the date herein.
14. The respondents shall have the costs of this application.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 27TH DAY OF JANUARY, 2022
H K CHEMITEI
JUDGE