[2022] KEHC 13486 (KLR)

Kinyua v Gichere & another (Both suing as the administrators of the estate of the Late Peter Njonjo Kamau) (Miscellaneous Civil Application E073 of 2021) [2022] KEHC 13486 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13486 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Civil Application E073 of 2021

MM Kasango, J

October 6, 2022

Between

Joseph M Kinyua

Applicant

and

Lydia Wanjiku Gichere

1st Respondent

Jipson Kamau Njonjo

2nd Respondent

Both suing as the administrators of the estate of the Late Peter Njonjo Kamau

(Being an application for extension of time to lodge an appeal against the judgment of the Chief Magistrates Court at Thika (Hon. C.A. Otieno Omondi, SPM) in Civil Case No. 389 of 2019 dated 29th January, 2022)

Ruling

1. Joseph M Kinyua (Joseph) has applied for leave to file an appeal out of time and for stay of execution of Ruiru Magistrate’s Court civil case No 389 of 2019.

2. Joseph presents the following reasons in his affidavit as basis of extension to file his appeal out of time:-That I am informed by my advocate on record which information I believe to be true that the said judgment was forwarded to my insurer, directline assurance company limited for approval of payment.That I am informed by my advocate on record which information I believe to be true that directline assurance company limited instructed my advocate on record to appeal against the said judgment which is unreasonable on quantum.That I am informed by my advocate on record which information I believe to be true by the time the firm of Kimondo Gachoka & Company advocates received instructions to appeal the statutory timeline of 30 days within which to file an appeal had already expired.That I am informed by my advocate on record which information I believe to be true that the delay is inadvertent on their part as the copy of judgment was not obtained within the required timelines to enable them advice my insurer.

3. The application is opposed by the respondents who deponed in their affidavit that there had been inordinate delay in bringing the application yet the judgment the applicant wishes to appeal against was delivered on January 29, 2021. The respondent also poked holes on the reason given for failing to file the appeal in time.

Discussion and Determination 4. The Supreme Court has formulated the principles that should guide a court when considering extension of time: see the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others (Application 12 (E021) of 2021) (2022) KESC 3 (KLR) (Commercial and Tax) (10 February 2022) (Ruling):-“4. The guiding principles in applications for extension of time were as follows;a.extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;b.a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;c.whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;d.whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.whether there would be any prejudice suffered by the respondents if the extension was granted;f.whether the application had been brought without undue delay; andg.whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

5. As will be seen above, the reproduced affidavit of the applicant, there is a lot of vagueness in the reason given for delay in filing the appeal. The applicant fails to put time lines in the actions taken after the trial court delivered its judgment on January 29, 2021. I would ask the questions: when was the judgment forwarded to the insurer and when was the applicant’s advocates instructed by the insurers to file the appeal. There is some intimation that there was delay in obtaining a copy of the judgment. But yet again the applicant failed to state what date the copy of the judgment was delivered to the advocates.

6. Section 79G of the Civil procedure Act provides that a party wishing to file an appeal but there has been delay, by the trial court in providing copy of the decree or order (read also judgment) such a party can obtain from the trial court certificate of delay. It is not enough to just state the copy of the judgment was not obtained within the required timeline. What is that timeline? The applicant is encouraged to consider what the Supreme Court stated about such submissions in the case Mombasa County Government v Kenya Ferry Services & another (2019) eKLR as follows:-“(26)Further, in the case of County Executive of Kisumu v County Government Of Kisumu & 8 others, SC Civil Appl No 3 of 2016; [2017] eKLR, this court emphasized the need for the applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the court. On the issue of delay occasioned by typed proceedings, we stated as follows:-“[24]a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.” [emphasis added]

7. It must be by now clear that the applicant has failed to shift the burden of proof he bears. The applicant has miserably failed to explain to the satisfaction of this court the reason for delay to file the appeal within requisite time. The application fails.

Disposition 8. The notice of motion dated April 1, 2021 is dismissed for lack of merit with costs.

9. This file shall henceforth be closed.

RULING DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGECoram:Court Assistant : Mourice/JuliaFor appellant/applicant : - Ms. Ongwenyi h/b Ms. MulingeFor Respondent : - C.K. ChegeRULING delivered virtually.MARY KASANGOJUDGE