[2022] KEHC 14822 (KLR)

Kiambiriria Gietu Water Project (Sued through its Officials 1. Benson Kinyua - Chairman 2. Purity Isack - Secretary 3. Joseph Mugambi – Vice-Chairman) v Gitonga (Miscellaneous Civil Application E003 of 2022) [2022] KEHC 14822 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14822 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Miscellaneous Civil Application E003 of 2022

HPG Waweru, J

November 3, 2022

Between

Kiambiriria Gietu Water Project

Applicant

Sued through its Officials 1. Benson Kinyua - Chairman 2. Purity Isack - Secretary 3. Joseph Mugambi – Vice-Chairman

and

Nicholas Gitonga

Respondent

(An appeal against the decree of the Nanyuki CMCC No 108 of 2016)

Ruling

1. This ruling concerns the application by notice of motion dated May 12, 2022 for enlargement of time to enable the applicant lodge appeal against the decree of the lower court (Nanyuki CMCC No 108 of 2016). The applicant in that suit was the defendant while the respondent was the plaintiff. By the aforesaid decree the plaintiff’s claim was allowed in full after trial. The respondent has opposed the application. I have read the supporting and replying affidavits. I have also considered the written submissions of the parties.

2. The decree was passed on March 31, 2022. By dint of section 79G of the Civil Procedure Act, Cap 21 any appeal against the decree ought to have been lodged within 30 days of March 31, 2022 – that is, on or before April 30, 2022. However, under the terms of the said section 79G, any time which the lower court may certify as having been requisite for the preparation and delivery to the applicant of a copy of the decree or order may be excluded from the period of 30 days. There is no such certificate in the present case.

3. As the present application was filed on May 12, 2022, the delay in filing the appeal is actually only twelve (12) days. That is not inordinate delay in the circumstances of this case; it is delay nevertheless, and the applicant ought to satisfy the court that it had good and sufficient cause for not filing its appeal in time so that the court may exercise its discretion in its favour under the proviso to section 79G aforesaid.

4. The explanation offered for the delay is that the lower court supplied to the applicant a copy of the judgment on May 5, 2022. However, as correctly pointed out in the replying affidavit, the applicant conveniently failed to disclose that that was the very day it applied for the same! Though its letter applying for a copy of the judgment is dated March 31, 2022, the court-stamp shows that it was received in the registry on May 5, 2022. No explanation was offered for this glaring inconsistency, even after it was pointed out. It can only mean that the aforesaid letter was falsely dated March 31, 2022, the date of the judgment, by the applicant’s advocates with the intention to mislead. Be that as it may, as the delay is not inordinate, it would not be just to shut out the applicant from the appellate process. It must however suffer the costs of the application.

5. In the result I will allow the application and direct that the applicant do lodge its memorandum of appeal within seven (7) days of delivery of this ruling. It is so ordered.

6. The respondent will have the costs of the application, herby assessed at KShs 20,000/00, the same to be payable forthwith.

DATED AND SIGNED AT NANYUKI THIS 1ST DAY OF NOVEMBER 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 3RDDAY OF NOVEMBER 2022