[2024] KEHC 15849 (KLR)

JSM v BT (Family Appeal E047 of 2024) [2024] KEHC 15849 (KLR) (13 December 2024) (Ruling)

Neutral citation: [2024] KEHC 15849 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal E047 of 2024

G Mutai, J

December 13, 2024

Between

JSM

Applicant

and

BT

Respondent

Ruling

1. The application before me is dated 24th July 2024. Vide the said application, the Appellant/Applicant seeks three orders at this point to wit:-“2. That this honourable Court be pleased to allow the Appellant/Applicant extension of time to file and serve the Memorandum of Appeal and the Record of Appeal against the judgment of the honourable Kadhi Abdiaziz delivered on 9th May 2024; and

3. That this honourable court exercises its jurisdiction and allows the Appellant enlargement of time to file the Memorandum of Appeal out of time.”

2. The Appellant/Applicant averred that he couldn’t file the file on time due to financial constraints, that the appeal is arguable and that the grant of the orders sought will not prejudice the Respondent.

3. In his decision, the learned Kadhi:-1. Allowed the unilateral divorce issued by the Appellant on 5th October 2022 and declared it valid and issued the decree of divorce;2. Granted the custody of the minor children to the Respondent; and3. Divided the matrimonial properties between the parties.4. The Respondent, who is a pro se litigant, filed a Replying Affidavit sworn on 14th October 2024, in which she deposed that the intended appeal is not arguable. She stated that no cogent reason was given for the delay in filing the appeal and that if the Appellant was a pauper, he ought to have sought laws of the Court under Order 44 of the Civil Procedure Rules to do so.5. The Respondent further deposed that the appeal was regarding a property she largely contributed to. In her view, the application is frivolous and vexatious.6. The appeal was canvassed through oral submissions on 6th November 2024. 7.Ms Nyawira, learned counsel for the Appellant/Applicant, contended that her client lacked the money to appeal within the prescribed time as he is caring for his children. She submitted that the appeal is good and raises triable. She urged that the Honourable Kadhi did not consider her client’s counterclaim, his submissions, or the parties' contribution to the acquisition of the matrimonial properties. She, therefore, prayed for an extension of time so that the appeal could be filed.8. The Respondent submitted that the application should not be allowed. She submitted that the Appellant/Applicant was using the properties she said she acquired to take care of the children rather than fend for himself as she was doing. She urged that he exit the house so she could live with the children.9. In her response Ms, Nyawira submitted that the matrimonial properties ought to be divided on the basis of contribution. She urged that the Hon. Kadhi erred by awarding the Respondent a 60% share of the car, notwithstanding the fact that she didn’t contribute towards its purchase.10. I have perused the Memorandum of Appeal, the Notice of Motion and the supporting affidavit as well as the response filed by the Respondent.11. Section 79G of the Civil Procedure Act states 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 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.”12. Although I am being called upon to exercise discretion, I may only do so based on sound principles and not whimsically or capriciously. There must be good and sufficient grounds that warrant giving the Appellant/Applicant a chance.13. The Court of Appeal in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015]eKLR, stated as follows:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”14. In my view, the draft appeal has triable issues as it raises questions as to whether Hon Kadhi determined all the matters before him and if the contributions by the parties were taken into account.15. The Court is of the view that the delay on the part of the Applicant wasn’t inordinate nor inexcusable. I am persuaded that the cost constraints may have impeded his access to justice.16. In the circumstances, the application is allowed as prayed. The time within which the appeal is to be filed is enlarged.17. The Appellant/Applicant is hereby ordered to file the appeal within 30 days of the days thereof, failing which the leave granted herein will lapse automatically.18. The matter will be mentioned on 5th February 2025 for directions on the hearing of the appeal.19. Orders accordingly

DATED AND SIGNED AT MOMBASA THIS 13TH DAY OF DECEMBER 2024. DELIVERED VIRTUALLY VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of:Ms Nyawira Gichobi, for the Appellant/Applicant;Ms Bahati Bakari Tunza (pro se litigant) (present); andArthur - Court Assistant.