[2017] KEHC 3118 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. CIVIL APPLICATION NO. 16 OF 2017

KENYA NATIONAL HIGHWAYS AUTHORITIY..........APPLICANT

VERSUS

PETER NJIRU MUGEKI......................................... RESPONDENT

R U L I N G

1. This application dated 18/01/2017 seeks for orders that:-

This honourable court be pleased to grant the applicants leave to Appeal against the decision of the Honourable Court delivered on 21st July 2016 out of time and consequently the Notice of appeal filed herewith be deemed to be duly filed in time.

2. The application is supported by the affidavit of Yasmin Josephine an advocate of the High Court in conduct of this matter who states that she is duly authorized to swear the affidavit on behalf of the applicant.

3. It is deposed that under the law, the applicant had fourteen days within which to appeal against he judgment of Hon. A. N. Makau Resident Magistrate Siakago in SRMCC No. 55 of 2015. Having been aggrieved by the judgment and the prescribed period for appeal having expired, there is need to seek extension of time.

4. The applicant explains delay in the typed proceedings claiming that the same were not ready on time because the file was inaccessible having been kept in the judge's chambers.

5. The grounds of appeal intended to be relied on in the intended appeal have been exemplified in the supporting affidavit faulting the judgment that it was not based on the law and evidence.

6. A certificate fo delay has been annexed to the affidavit to the effect that the firm of Kithure Kindiki now on record for the applicant applied for proceedings on 4/08/2016 which were not available due to pressure of work until 24/11/2016.

7. The application was opposed in the replying affidavit of the respondent who deposed that the applicant has not explained the long delay. After being supplied with the proceedings on 29/11/2016 as shown by the certificate of delay, the applicant took two months to file this application. It is further deposed that the appeal has no chances of success.

8. The record shows that judgment in this case was delivered on 21/07/2016. The certificate of delay shows that the applicant applied for proceedings on 4/08/2016 and was supplied on 24/11/2016. The reason for this three months delay was explained in the certificate as being pressure of work at the station, meaning that proceedings could not have been typed on time.

9. The affidavit of the counsel gives an additional reason that the file was not accessible because it was held in the judge's chambers. This contradicts the reason advanced by the applicant in his affidavit.

10. I note that the applicant omitted to annex the letter he wrote applying for the typed proceedings. Neither did he annex a reminder addressed to the court for the request of the proceedings. The information that the file was held in the judge's or magistrates chambers was not supported by any evidence.

11. It is trite law that a party seeking extension of time and wishes to rely on a certificate of delay must attach a letter requesting for proceedings and also serve it on the respondent (see case of DAVID KARANJA VS GULZAR JURJI H.C. Nairobi Civil Application No. 48 of 1983).

12. Following supply of proceedings on 24/11/2016, the applicant did not file the appeal. The notice of appeal was filed on 24/01/2017 about two months later. The applicant has made no attempt to explain this delay of two months.

13. It was held in the case of JEMIMAH ACHILLO GOGO VS TELCOM KENYA LTD Civil Application No. 181 of 2005that before the court can exercise its discretion in favour of the applicant, he/she must show that the delay was not inordinate. In this application, the applicant has not explained the delay of two months after proceedings were supplied, let alone showing that delay was not inordinate. Three months had expired as the applicant purported to be awaiting the typing of proceedings. In my considered view, the five months delay is inordinate and unjustified and do not tilt in favour of the applicant in exercise of the discretion of the court.

14. I have perused the grounds of appeal and the judgment of the learned magistrate and noted that the County Government of Embu was said to have allocated the stall to the respondent. The County Government was not joined as a party to the lower court proceedings although the respondent pays rates to it. Without pre-empting the intended appeal, I am not convinced that the appeal has high chances of success.

15. It is my considered opinion that the plaintiff has failed to achieve the threshold for this application.

16. I find that it lacks merit and its hereby dismissed with costs.

17. It is hereby so ordered.

DATED, DELIVERED AND SIGNED THIS 5TH DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Mokaya for Applicant

Ms. Njeru for Muthobi for respondent