[2019] KEHC 2589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

(CORAM: CHERERE-J)

MISC CIVIL APP NO. 123 OF 2019

BETWEEN

JARED ODHIAMBO & 4 OTHERS..................................................APPLICANTS

AND

JOHN OPANDE ONGARO.............................................................RESPONDENT

RULING

1. By a notice of motion dated 31st July, 2019 and filed on 01st August, 2019, brought under Section 3A and 79G of the Civil Procedure Act Cap 21 Laws of Kenya, the applicants pray for orders that:

1. Time within which to file and serve the Notice and Record of Appeal arising out of the ruling in Nyando Succession Cause No. 163 of 2016 consolidated with Nyando ELC No. 107 of 2018 be extended

2. Costs be provided for

2. The application is based on the grounds among others that:

a. The notices of appeal were filed in Nyando Court immediately after the application was dismissed on 13th June, 2019

b. That application for certified copy of the ruling was filed on 13th June, 2019 but the same was not supplied

3. The application is supported by an affidavit sworn on 30th July, 2019 by the Applicants and a further affidavit by George Opiyo, advocate for the Applicants on 16th September, 2019 in which they reiterate the grounds on the face of the application. Annexed to the affidavit is the request for certified copy of ruling, certified copy of the ruling and notices of appeal.

4. The application is opposed by way of a replying affidavit sworn on 14th October, 2019 by the Respondent who avers that the applicant has been litigating over this matter for long and it ought to be put to rest. He also avers that in the absence of the draft appeal, the application ought to be dismissed.

Issue for determination

5. The main issue for determination is whether the applicants ought to be granted leave to appeal out of time.

6. Section 79G of the Civil Procedure Act (the Act) provides that:

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

7. The law on extension of time is to be found in Section 95 of the Act which states as follows:

“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

8. Order 50 of the Civil Procedure Rules on the other hand states that:

“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed”

9. The parameters for exercise of court’s discretion were concisely laid out in the case of Mwangi v Kenya Airways Ltd [2003] KLRwhere the Court of Appeal expressed itself thus: -

“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”.

10. The ruling from which the Applicant proposes to appeal against was delivered on 13th June, 2019. The applicants had up to 13th July, 2019 to file the intended appeal. The present application was filed on 01st August, 2019 which is about 18 days outside the time limited for filing an appeal.

11. The Applicants have demonstrated that they requested for a certified copy of the ruling on 13th June, 2019. Although the Applicants have not disclosed when the ruling was supplied, it must have been after 18th July, 2019 which is the date it was certified.

12. Determining at this juncture whether the appeal has or has no probability of success will amount to deciding on a matter not before this court. All that this court needs to determine at this juncture is whether the applicant has a prima facie case that is triable. (See Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others[2014] eKLR.

13. I have considered the issues raised in the draft memorandum of appeal and I have no doubt that they raise a prima facie case that is triable.

14. The 18 days’ delay has been explained to the satisfaction of the court and under the powers granted to this court under Section 3A of the Act, I find that it would be in the interest of justice to exercise my discretion in favour of the applicants.

15. As a result, the notice of motion dated 31st July, 2019 and filed on 01st August, 2019 is allowed on the following terms:

1. The applicant is granted leave to appeal out of time

2. The Applicant has 30 days from the date hereof the file and serve the record of appeal

3. Costs shall be costs in the Appeal

DATED, DELIVERED AND SIGNED ON THIS17thDAY OF October2019

T.W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant- Amondi

For the Applicant- N/A

For the Respondent - N/A