[2023] KEHC 24075 (KLR)

Lake Victoria Services Board v Oduor & another (Miscellaneous Application 48 & 58A of 2022 (Consolidated)) [2023] KEHC 24075 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24075 (KLR)

Republic of Kenya

In the High Court at Busia

Miscellaneous Application 48 & 58A of 2022 (Consolidated)

WM Musyoka, J

October 27, 2023

Between

Lake Victoria Services Board

Applicant

and

Ernest Otsieno Oduor

1st Respondent

George Opondo Olayo

2nd Respondent

Ruling

1. I delivered a ruling herein on 19th June 2023, where I dismissed a preliminary objection on a prayer for leave to appeal out of time, and allowed it with respect to stay of execution. The objections had been raised with respect to an application dated 13th December 2022. I directed the parties to file written submissions on the question of grant of leave to appeal out of time.

2. The parties have filed their respective written submissions on that question. I have read through the 2 sets of written submissions and noted the arguments made.

3. The applicant submits that it filed its application for leave without substantial delay, for judgment was delivered on 30th September 2022, in the absence of both parties, instructions to appeal were given on 28th October 2022. It is submitted that the delay was just for 1 week, which, it is urged, is not inordinate. It is submitted that there exist good grounds of appeal, and that the applicant was willing to furnish security. Section 79G of the Civil Procedure Act, Cap 21, Laws of Kenya; Order 50 rule 6 of the Civil Procedure Rules; John Mbua Muthoni & another v Ruth Muthoni Kariuki [2017] eKLR (J. Ngugi, J); Fakir Mohammed v Joseph Mugambi & 2 others Civil Application no NAI 332 of 2004 (unreported); MFI Document Solutions Ltd v Paretto Printing Works Limited [2021] eKLR (Ong’udi, J) and Kenya Power & Lighting Company Limited v Rose Anyango & another [2020] eKLR (Aburili, J).

4. On their part, the respondents submit that the parties recorded a consent on 19th October 2022, and the time for filing appeal lapsed on 30th October 2022. It is submitted that extension of time to appeal is discretionary, and it is granted only where the delay is convincingly explained. It is argued that it has not been explained in this case. It is submitted that there was no evidence that the court’s systems failed, occasioning the delay to file appeal within time. It is argued that the memorandum of appeal was signed on 7th November 2022, after the time for filing appeal had ran out. Nicholas K. arap Korir Salat v IEBC [2014] eKLR (Ibrahim & Wanjala, SCJJ) is cited, for the point that extension of time is discretionary, and that it is not a right.

5. I have seen from the material placed before me, that judgment was delivered on 30th September 2022. The applicant has attached documents to demonstrate that there was downturn in the Judiciary internet system, and says that that delayed their filing of the appeal. I have also seen correspondence between the applicant and its Advocates, around 1st and 2nd November 2022, about filing an appeal. The respondents did not file a replying affidavit, and, therefore, the factual background to the application, given by the applicant, has not been controverted by counter facts. The facts, as presented by the applicant, are, therefore, not challenged. In the circumstances, I am persuaded by and satisfied with the explanation given by the applicant for the delay. The delay was not inordinate, for the application was filed on 7th November 2022, barely a week after the lapse of the period within which appeal should have been filed. I shall exercise discretion, in the circumstances, in favour of the applicant.

6. I, accordingly, therefore, allow the application dated 7th November 2022, and extend time for filing appeal. The extension shall be for 30 days, from the date of this ruling. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 27THDAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Wangoda, instructed by LG Menezes & Company, Advocates for the applicant.Ms. Achala, instructed by Abolo & Company Advocates for the respondents