[2022] KEHC 16516 (KLR)

KM (Suing as the Father and Next Friend of JMK) v Thumbi & another (Miscellaneous Civil Application E034 of 2022) [2022] KEHC 16516 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16516 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application E034 of 2022

MW Muigai, J

November 8, 2022

Between

KM (Suing as the Father and Next Friend of JMK)

Applicant

and

Muigai Thumbi

1st Respondent

Patrick Mwangi Mwaura

2nd Respondent

(Hon. E.W. Wambugu delivered on 2nd September 2021 in Kithimani Chief Magistrate Court Civil case No. 267 of 2017. )

Ruling

1. Before me is a Notice of Motion Application brought under section 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 42,Order 51 (1) of the Civil Procedure Rules seeking the following orders;a.That the Court be pleased to grant the Applicant leave to file appeal out of time against judgment of Hon EW Wambugu delivered on September 2, 2021 in Kithimani Chief Magistrate Court Civil case No 267 of 2017. b.That the cost of this application be provide for.

2. The Application was supported by an affidavit of Musili Mbiti, advocate. The Honorable Magistrate EW Wambugu delivered his judgement at Kithimani PMCC No 267 of 2017 on September 2, 2021 where the court dismissed the suit and soon after receiving the judgement and explaining the same to the Applicant, he instructed him to appeal against the same applicant. He deposed that in the process of preparing for the appeal, the office file was misplaced at the office and by the time it was found, 30 days window for filing an Appeal had already lapsed.

3. He further deposes that he raises pertinent issues both of law and fact in which the learned magistrate erred in her judgment. He contends that the delay was caused by circumstances not of the Plaintiff’s making but due to the time it took to trace the file for which he apologized and opined that the delay was not inordinate. He contends that the Appeal is arguable and he is willing to abide by the conditions that may be set by the court in granting the prayers sought.

Replying Affidavit 4. In opposition of the Application, Lydia Arudo, the legal officer of the insurer filed a Replying Affidavit dated June 2, 2022 in which she contended that the matter was dismissed in 2021, the Applicant was aware but did not take any action. She stated that the Applicant has not given valid reasons why they did not file their appeal or give the court notice of their intention to file an appeal nor have they shown any valid reason that the court ought to exercise its discretion. She contended that the delay of over six months is ordinate delay and is an attempt to drag the Respondent in unending litigation. The application is an abuse of the court and violation of known principles of law that the court should not entertain. She deponed that the Respondent will suffer great prejudice and grave injustice if the appeal is allowed as the same will be invalidating an injustice.

5. The Application was canvassed by way of written submissions.

Applicant Submissions 6. The Applicant relied on section 79 G of the Civil Procedure Act that provides as follows;'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 to the appellant 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 on time.

7. The Applicant relied on the case of Mwangi vs Kenya Airways Limited [2003] KLR andCivil Application No Nai 98 OF 2013 Aviation Cargo support limited vs St Mark Freight Services Limited and submitted that judgment was delivered on September 2, 2021 and given the December holidays, the delay was not inordinate and prays for pardon for the 3 months delay. Further reliance was placed on the case of Leo Sila Mutsp vs arose Hellen Wangari Mwangi Civil Application 255 of 1997 and Samuel Mwaura Muthimbi vs Josephine Wanjiru Ngugi & another [2018] eKLR where he opines that a similar application was granted and discretion of courts was observed.

Respondent’s Submissions 8. The Respondent filed submissions on September 16, 2022 and urged the court to be persuaded by Section 79 B of the Civil Procedure Act that she contended allows the court to summarily dismiss the appeal. While relying on the case of Gerald M’Limbine vs Joseph Kangangi [2008] eKLR, Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commissions & 7 others, the Respondent reiterated the contents of its affidavit and submitted that the Appeal seeks to revive a case that has been determined and found wanting of evidence therefore the Applicant could not prove its case of a balance of probabilities.

9. On the issue of unreasonable delay, reliance was placed on the case of Jaber Mohsen Ali & Another v Priscillah Boit & Another [2014] eKLR on what unreasonable delay is, that it is dependent on the surrounding circumstances of each case. Even one day after judgement could be unreasonable delay depending on the judgement of the court and any order given thereafter.

Determination 10. I have perused the Application, the response thereto and the submissions of the parties on record and the issue for determination is whether the Applicant is entitled to the orders sought.

11. Section 79 G of the Civil Procedure Act provides 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 to the appellant 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. The considerations for extension of time were discussed in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR that;1. 'Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the Respondents if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.'

13. Other considerations were also discussed by Odek, JJA inEdith Gichugu Koine vs Stephen Njagi Thoithi [2014] eKLR, thus'Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See Fakir Mohamed V Joseph Mugambi & 2 Others, Civil Application Nai 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.'

14. The Court of Appeal in his Court in Kamlesh Mansukhalal Damji Pattni vs Director of Public Prosecutions & 3 others [2015] eKLR articulated that-'It must be realized that courts exist for the purpose of dispensing justice. Judicial Officers derive their judicial power from the people or, as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of theConstitution which succinctly states that 'judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.' Judicial Officers are also State officers, and consequently are enjoined by Article 10 of theConstitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity are upheld. For these reasons, decisions of the Courts must be redolent of fairness and reflect the best interest of the people whom the law is intended to serve. Such decisions may involve only the rights and obligations of the parties to the litigation inter se (and hence only the parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the Court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.'

15. In this case, judgement was delivered in Chief Magistrate Court Civil Case No 267 of 2017 in September 2, 2021 and the Application before this court was filed on February 21, 2022. The period of delay is five months later. The reasons for the delay given by the Applicant are that the office file was misplaced and could not be traced. In addition, that given the December holidays, the delay was not inordinate. The Respondent contends that these are excuses. The Applicant did not file a Notice of Appeal within the 30 days just to give an indication of the intention to Appeal. This could have been prepared even without the file. The Applicant does not seem to have taken steps towards tracing the file or even the judgment that he had access to. This Court finds that the reasons though weighty are not satisfactory.

16. In First American Bank of Kenya Ltd vs Gulab P Shah & 2 Others [2002] 1 EA 65 it was held that:'The Court has unfettered discretion under sub paragraph (4) of rule 11 of the Advocates Remuneration Order to extend time prescribed by sub paragraph (1) and (2) of the same rule within which to give notice of objection to the decision on taxation and to file a reference to a Judge in respect of such taxation. Factors to be taken into account in an application for extension of time are;(i).The explanation if any for the delay;(ii). The merits of the contemplated action, whether the matter is an arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice;(iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant...The Court is clothed with inherent powers and jurisdiction all the time in all causes irrespective of legislative or other juridical foundations of any such cause or matter before it as the juridical root of the Court’s inherent power does not lie in section 3A of the Civil Procedure Act but in the nature of the High Court as a Superior Court of judicature.'

17. This Court has a duty to balance the rights of both parties in exercising its discretion. The prejudice that the Respondent will suffer if the Appeal is allowed can be compensated by costs. The Applicant on the other hand has a Constitutional right to appeal.

18. This Court also notes that the Replying affidavit was filed on September 20, 2022 after the Applicant and Respondent had filed their submissions on July 4, 2022 and September 16, 2022 respectively.

19. In the premises, this Court extends time for filing the Appeal within 30 days on condition he pays to the Respondent a sum of Kshs 20,000. 00 within the said period and in default the application shall stand dismissed with costs to the Respondent.

It is so ordered.

DELIVERED, SIGNED AND DATED IN OPEN COURT IN MACHAKOS ON THIS 8TH DAY OF NOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OF:NO APPEARANCE - FOR THE APPLICANTNO APPEARANCE - FOR THE RESPONDENTSGEOFFREY/PATRICK - COURT ASSISTANT(S)