[2022] KEHC 13940 (KLR)

Karinga v Karinga (Miscellaneous Civil Application E004 of 2022) [2022] KEHC 13940 (KLR) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13940 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Civil Application E004 of 2022

LM Njuguna, J

October 3, 2022

Between

Peter Ngari Karinga

Applicant

and

Josphene Kanyiva Karinga

Respondent

Ruling

1. Before this court is the notice of motion brought under Order 42 Rule 6 of the Civil Procedure Rules 2010 and all the enabling provisions of the law and dated 17. 12. 2021 wherein the applicant seeks for orders that:i.Spent.ii.This Honourable Court be pleased to grant the applicant leave to appeal out of time against the judgment of W. Ngumi Hon. delivered on 25. 08. 2021 in Siakago Succession Cause No. 39 of 2012. iii.Costs be in the cause.

2. The application is premised on the grounds on its face and further supported by an affidavit sworn by the applicant. In a nut shell, it is the applicant’s case that he was a petitioner/co-administrator in Siakago Succession Cause No. 39 of 2012 while the respondent was a protestor/co-administrator in the same cause. That the respondent is his step mother and a wife to the deceased. It was his case that the trial court delivered a judgment on 25. 08. 2021 and wherein the trial court adopted the mode of distribution as was proposed by the respondent. He deponed that should the judgment be implemented, then he shall suffer irreparable loss given that the estate shall have been distributed to strangers.

3. That after the judgment, he engaged a counsel to file an appeal on his behalf who proceeded to apply for a typed copy of the judgment on 07. 09. 2021 but which was supplied on 27. 10. 2021 after numerous follow ups from the registry. He averred that as at the time the judgment was supplied, the 30 days within which to appeal had already lapsed and that the applicant’s delay in filing the appeal was not deliberate as the counsel only got a copy of the typed judgment over two months after judgment was delivered. It was his case that his appeal has merits as evidenced in his annexed draft memorandum of appeal and thus prayed that this court allow the application herein.

4. The respondent opposed the application vide a replying affidavit sworn on 14. 02. 2022 citing among other reasons that the applicant is guilty of laches in filing the application herein; that the trial court after delivery of the said judgment stated to parties that a copy of the same would be available the following week upon corrections being made; and that she obtained her copy on 08. 09. 2021. She deponed that the applicant did not plead any probable, sufficient and/or justifiable cause why he did not file an appeal within the stipulated statutory period.

5. It was her case that the applicant’s annextures also demonstrated that the applicant’s advocate applied for the said proceedings on 07. 09. 2012 but the same were paid for on 27. 10. 2021 hence the delay was not caused by the court as alleged. Further, the respondent deponed that the applicant does not have an appeal with a great chance of success and that he had previously filed the succession proceedings in respect of the estate of her late husband without informing anyone. It was her case that the applicant had proposed to inherit the bulk of the estate of the deceased apart from the 2 acres that he had proposed that she be given. That the deceased herein had previously sold some other parcel of lands to 3rd parties but passed on before transferring them to the said purchasers who had already been granted vacant possession of the said parcels of land. She stated that she is aged and would like to have the estate of her late husband settled while she is still physically and mentally able to do so. In the end, she urged this court to dismiss the application herein with costs and in the event the court allows it, the court should order strict conditions including security as to costs.

6. The applicant filed a supplementary affidavit sworn on 12. 05. 2022 in which he deponed that, it is not true that he delayed in filing the intended appeal given that the proceedings were supplied late and for the fact that money was required of him to file the appeal which she did not have at that time. He conceded that the deceased had several houses but he left the properties to him and this is a fact known by all the family members. That the respondent intermeddled in the deceased’s property in that the estate was alienated and sold to strangers without his knowledge or consent from family members.

7. Directions were given that the application be canvassed by way of written submissions. The respondent did not comply while the applicant chose to rely on his affidavit.

8. I have considered the application and the rival responses filed by the parties herein and I form the view that the issue which this court should determine is whether the orders sought herein ought to be granted.

9. When it comes to appeals from the subordinate court to the High Court, the applicable provision is Section 79G of the Civil Procedure Act which expresses that appeals of such nature must be filed within a period of 30 days from the date of the decree or order from which the appeal lies. The proviso to the said section, however, allows for extension of time to appeal where good and sufficient cause has been shown.

10. Section 95 of the Act further bestows this court with discretion to enlarge time. The said section provides as thus;-“95. 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.”

11. The principles upon which the court should exercise the said discretion and grant leave to appeal out of time are now settled. The court is supposed to take into account the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted. [See Leo Sila Mutiso v Rose Hellen Wangari Mwangi- Civil Application No. NAI 255 of 1997 (unreported) and Thuita Mwangi v Kenya Airways Limited [2003] eKLR].

12. As such, extension of time within which an appeal ought to be filed is a matter of judicial discretion and an applicant seeking enlargement of time to file an appeal must show that he has a good cause for doing so.

13. The question therefore is whether the applicant has satisfied the above conditions.

14. As for the length of the delay, it is not disputed that the judgment of the trial court was delivered on 25. 08. 2021. The application herein was filed on 27. 01. 2022 which is slightly four months from the date of the said judgment. In the case of Jaber Mohsen Ali & Another v Priscillah Boit & Another E & L No. 200 of 2012 {2014} eKLR the Court stated that what is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after Judgment/Ruling could be unreasonable delay depending on the Judgment/Ruling of the Court and any order given thereafter.

15. In the circumstances of the instant case, the applicant has given reasons for the delay and which he has urged this court to have in mind when considering the application. He has stated that he applied for copies of typed judgment/proceedings on the 7. 09. 2021 but the same were supplied on 27. 10. 2021 after numerous follow ups. In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the court was of the view that;“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

16. In putting his case forward, the applicant has submitted that the proceedings were supplied late and this was compounded with the fact that he did not have money to file an appeal. That he had to look for an advocate to represent him in the case and in the process, he got caught up with the time and hence the delay.

17. In that regard, I am guided by the Court of Appeal decision in Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] eKLR (Nambuye J.A) while quoting with approval the case of Richard Nchapi Leiyagu v IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206 and the Tanzanian case of Abbas Sherally & Another v Abdul Fazaiboy, Civil Application No. 33 of 2003, right to be heard is not only constitutionally entrenched but also the corner stone of the Rule of law; a valued right; and so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice.

18. As for the chances of the intended appeal succeeding, I have perused the draft memorandum of appeal. It is trite that in deciding whether an appeal is arguable or not, the court is bound to consider whether the said intended appeal raises a bona fide issue for determination by the Court. For the intended appeal to be termed as arguable, all that is needed in law is that there be even one arguable point and that will suffice. [See Commissioner of Customs v Anil Doshi, {2017} eKLR; Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008].

19. I have perused the judgment by the trial court subject of the intended appeal and further, the grounds on the draft memorandum of appeal. It is clear that the intended appeal arises out of a succession cause which was previously dealt with by the trial court. It is trite that in deciding whether an appeal is arguable or not, the court is bound to consider whether the said intended appeal raises a bona fide issue for determination by the Court. The applicant urges this court to consider the fact that this is an intestate succession in a polygamous setting and further that, the respondent intermeddled in the deceased’s property in that the estate was alienated and sold to strangers without his knowledge or consent from family members. It is his case that he stands to be disinherited as a rightful beneficiary of the estate herein. In my view, the issues raised by the applicant are arguable; however, it is essential to note that an arguable appeal does not necessarily mean an appeal that will or must succeed.

20. As for the prejudice which the respondent stands to suffer should leave be granted for the applicant to file an appeal out of time; from the respondent’s replying affidavit, I did not come across any credible evidence to indicate the prejudice that would befall her, that cannot be compensated by way of costs and especially considering the averments by the applicant in his further affidavit to the effect that the estate has been distributed to strangers thus leaving him disinherited. It should be noted that the right to be heard is provided for in our constitution. The applicant having expressed his intentions to be heard on appeal, it is paramount that he be granted the said opportunity.

21. As I have already stated, extension of time to file appeal is a matter of exercise of judicial discretion. Where a party is aggrieved and wishes to pursue an appeal it would be fair to exercise discretion in his favour and especially where the delay in filing the appeal has been satisfactorily explained. Discretion of the court must always be exercised judiciously. The applicant having expressed his intentions to be heard by this court on appeal and in the given circumstances, it is my considered view that an opportunity should be availed to him to do so.

22. I hereby allow the application and make the following orders;i.That leave be and is hereby granted to the applicant to file an appeal out of time.ii.That the appeal be filed within 21 days from the date of this ruling. Thereafter, the applicant to file and serve the Record of Appeal within 30 days from the date of filing of the appeal.iii.That the cost of the application shall abide the outcome of the appeal.

23. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE………………………………for the Appellant……………………………for the Respondent