[2025] KEHC 3572 (KLR)

Maclean & another v Kiago & another (Miscellaneous Civil Application E070 of 2023) [2025] KEHC 3572 (KLR) (24 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3572 (KLR)

Republic of Kenya

In the High Court at Kitale

Miscellaneous Civil Application E070 of 2023

AC Mrima, J

March 24, 2025

Between

Alfred Kipng'etich Maclean

1st Applicant

Aziz Munyaanya Said

2nd Applicant

and

Jimmy Gichuki Kiago

1st Respondent

Khetia Drappers Limited

2nd Respondent

Ruling

1. The application subject of this ruling is a Notice of Motion dated 28th August 2023. It was instituted by Alfred Kipng’etich Maclean and Aziz Munyaanya Said, the 1st and 2nd Applicants. It is supported by an evenly dated Affidavit deposed to by the 1st Applicant.

2. The application sought the following orders: - 1. That the proposed Appellant be granted leave to appeal out of time against the whole judgment of the Hon. Mrs. Makila Principal Magistrate, delivered on 15th June 2022 at Kitale in Kitale CMCC Number 35 of 2019 between Jimmy Gichuki Kiago -vs- Khetia Drapers Limited, Alfred Kipng’etich Maclean & Azizi Said Munyanya.

2. That the memorandum of appeal annexed hereto be deemed as duly filed and served.

3. That costs of this application be provided for.

3. In the grounds in support of the application, the Applicants argued that when judgment was delivered on 15th June 2022, they did not receive it in time to appreciate its reasoning for purposes of lodging an appeal and that by the time they received instructions, the time allowed to file an appeal had run out. The Applicants also stated that the Respondents are unlikely to suffer any prejudice and that the delay is not so inordinate as to be inexcusable.

4. In the supporting Affidavit, the Applicant stated that on the day the judgment was delivered, their Advocate requested for a order of stay of execution so as to enable communicate and to seek advice on the way forward. The Advocate also orally requested for typed proceedings and that it took a year to type and collect them. It was the Applicants case that despite the delay, this Court has power to enlarge time since the delay was occasioned in typing proceedings.

5. In their submissions dated 3rd April 2024, the Applicants relied on the case of Thuita Mwangi -vs- Kenya Airways Limited (2003) eKLR and the one in Mombasa County Government -vs- Kenya Ferry Services & Anor (2019) eKLR where it was observed that the Court should consider the factors of delay which include period and reason for delay, arguability of the delay, prejudice to the Respondent, compliance with the time limits and the effects on demonstration of justice. It was submitted that the Applicants have an arguable appeal and that the proposed Respondents will not suffer any prejudice.

6. Jimmy Gichuki Kiago, the 1st Respondent, challenged the application through his Replying Affidavit deposed to on 17th November 2023. He posited that the application was frivolous and an abuse of Court process since judgement in the lower Court was delivered on 15th June 2023. He also stated that the Applicants had not given sufficient cause or any plausible explanation for not filing the intended appeal within the timelines provided and as such the application was an afterthought meant to misuse the judicial process and delay execution proceedings in the lower Court. He urged the application to be dismissed with costs.

7. The 1st Respondent did not file any written submissions.

8. Khetias Drapers Limited, the 2nd Respondent opposed the application through the Replying Affidavit of its Advocate, Aggrey Lucas Kidiavai, deposed to on 2nd May 2024. At the outset, it was its case that the application was frivolous, bad in law and incompetent since Section 79G of the Civil Procedure Act strictly requires appeals to be lodged within 30 days from the date of ruling.

9. He deposed that the Applicants have not demonstrated sufficient reason at to allow them to appeal out of time and that the is no certificate of delay from the lower Court. In response to the argument that the delay was occasioned by the Applicants themselves having delayed in giving instructions, it was its case that equity favours the vigilant and such delay is not sufficient reason to appeal out of time. Counsel deposed that the Applicants had not taken any step since judgment was delivered on 15th June 2022, a fact they were aware of. It was further his case that the Applicants had not provided proof of correspondence with Court requesting typed proceedings and there was no good cause for not filing the appeal within time.

10. Mr. Kidiavai asserted that the application was an afterthought meant to forestall execution of the decree. He deposed that the Applicants were guilty of laches since the judgment sought to be appealed against was delivered 2 years ago. In conclusion, he deposed that justice demands that litigation must come to an end.

11. The 2nd Respondent urged its case further through written submissions dated 10th July 2024. It identified three issues for determination as; whether the Applicants have fulfilled the requirements for extension of time; whether the respondents will suffer prejudice if extension is granted and whether costs should be granted to it.

12. Regarding the first issue, it was its case that the Applicant had not provided and any Certificate of delay which is crucial in determining whether delay is justified. The case in APA Insurance Limited -vs- Michael Kinyanjui Muturi (2016) eKLR and the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat -vs- IEBC & 7 Others (2014) eKLR was referred to where the Court observed that the factors to consider include length of the delay, reason for the delay and the explanation proffered.

13. On the second issue concerning prejudice, it was his case that allowing the application would delay resolution and cause unnecessary prolongation of the litigation process. The decision in Stanbic Kenya Limited -vs- Kivuitu (2007) eKLR was relied on to that end. It also was his contention that the Applicant had not shown the prejudice it will suffer if the extension is not granted.

14. On costs, the 2nd Respondent submitted that it ought to be granted costs in consonance with the principle that costs follow the event.

15. On consideration of the application, the responses and the submissions on record, this Court is now called upon to determine whether the application meets the threshold for enlargement of time.

16. Section 79G of the Civil Procedure Act is the statutory imperative calling upon an aggrieved party to lodge an appeal from the subordinate Court within 30 days of a decision. It 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 in time.

17. The jurisdictional significance of filing an appeal within the prescribed timelines was elaborately brought out by the Supreme Court in Nick Salat -vs- Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR). In the case, the Learned Judges approvingly referred to the decision of the Supreme Court of California in Silver brand -vs- County of Los Angeles [2009] 46 Cal. 4th 106 where the following was said: -As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite.… Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.…. The purpose of this requirement is to promote the finality of judgements by forcing the losing party to take an appeal expeditiously or not at all.

18. It is immediately discernible that where an appeal is lodged out of time, the appellate Court is stripped of jurisdiction. That achieves the twin objective of according the winning party the opportunity to enjoy its judgment and at the same time brings litigation to an end. In Nick Salat -vs- Independent Electoral and Boundaries Commission & 7 others, the Apex Judges remarked the significance of time in the following manner: -Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigants’ legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined.

19. Therefore, for time to be extended, a Court must strike a fair balance between expeditious disposal of cases and an aggrieved party’s right of appeal.

20. With the foregoing, this Court now turns to the principles to be applied by a Court. Essentially, extension of time is an equitable discretionary power on a Court. A party cannot ask of it as a matter of right. In Nick Salat -vs- Independent Electoral and Boundaries Commission & 7 others the Supreme Court observed as follows: -… Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.

21. In the above case, the Supreme Court referred to the Court of Appeal decision in Paul Wanjohi Mathenge -vs- Duncan Gichane Mathenge [2013] eKLR the Court laid out the principles to be satisfied in the following terms: -…. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in 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 and interested parties if the application is granted, and whether the matter raises issues of public importanceFor instance, in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), the Court expressed itself thus: -…. It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”(underline mine)

22. The Court then crystallized the principles as follows: -….. 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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time…

23. Having laid out the principles guiding the process for extension of time, a brief recount of the facts shall suffice. The judgment, subject of the instant application, was rendered on 15th June 2022. The instant application is dated 28th August 2023 and was filed in Court on 31st August 2023. The length of the delay is, therefore, 1 year, 2 months and 2 weeks.

24. The reasons advanced for delay are both in the application and the supporting Affidavit. The Applicants stated that the typed proceedings and judgment were not received in time. However, the Applicants did not produce anything in evidence to demonstrate that they indeed requested for the typed judgment or proceedings. Similarly, the Applicants fails to point the time when it received the judgment as to aid this Court compute the delay that cannot be attributed to the Applicants. Instead, the Applicants only stated that “the typed judgment was not received in time”.

25. The Apex Court in the case of Nick Salat (supra) observed thus:… In those circumstances, it is incumbent on the Applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.

26. This Court, therefore, finds and hold that the delay in lodging the application was not satisfactorily explained by the Applicants.

27. As regards the chances of the appeal succeeding if the application is granted, a perusal of the annexed Memorandum of Appeal shows that the Applicants seek to hold the 2nd Respondent liable despite evidence that it was not the owner of the subject vehicle at the time of the accident. They generally fault the trial Court for awarding damages when the burden of proof was not discharged and for making findings based on unreliable evidence.

28. A cursory perusal of the impugned judgment shows a detailed appreciation of the summary of the evidence at the trial Court. A total of six witnesses testified on behalf of the Respondents herein and two for the Applicants. Liability for the accident was assessed at 100% against the 2nd Applicant and vicariously against the 1st Applicant.

29. Finally, on the degree of prejudice to be suffered by the Respondents if the application is allowed, there is no doubt that during the unexplained period, the Respondents must have taken steps towards enjoying the fruits of their judgment. Such efforts will be curtailed if the litigation is re-opened. The Respondents, hence, to be more prejudiced if the application is allowed.

30. Deriving from the foregoing, the Applicants have not persuaded this Court that their application is deserving. This Court, therefore, finds no merit in the Notice of Motion dated 28th August 2023. It is hereby dismissed with costs.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 24TH DAY OF MARCH, 2025. A. C. MRIMAJUDGERuling virtually delivered in the presence of:Mr. Wanyonyi, Learned Counsel for the Applicants.Mr. Khaemba, Learned Counsel for the 1st Respondent.Miss. Ngeiywo, Learned Counsel for the 2nd Respondent.Duke/Chemosop – Court Assistants.