[2022] KEHC 14920 (KLR)

Malindi Saltworks Ltd v Kazungu & Kazungu (Suing as Administrators of the Estate of Francis Noti Kazungu) & another (Civil Appeal E062 of 2022) [2022] KEHC 14920 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14920 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E062 of 2022

SM Githinji, J

November 1, 2022

Between

Malindi Saltworks Ltd

Appellant

and

Samson Kesi Kazungu & Dama Kenga Chondo Kazungu (Suing as Administrators of the Estate of Francis Noti Kazungu)

1st Respondent

Samson Kithi Ngombo

2nd Respondent

((Being an Appeal from the Judgement of Honourable Dr. Julie Oseko (CM) delivered on the 12th April, 2022 in CMcc No.141 of 2008 at Malindi)

Judgment

1. Before court for determination is the appellant’s application dated June 27, 2022 brought under section 65, 76,77, 79G of the Civil Procedure Act; Order 51 rule 1, Order 50 rule 6, Order 22 rule 22 {1} and Order 42 rule 6 {1} {2}{a} of the Civil Procedure Rules; and section 27 and 28 of the Limitation of Actions Act. The Appellants seek the following orders:1. Spent.2. Spent.3. That pending hearing and determination of the intended appeal, there be stay of judgment entered in CMCC No 141 of 2008 in the 1st instance and there be an order of stay of proceedings therein.4. That the honourable court pleased to extend the time within which to file the appeal out of statutory time limit and that such extension do operate as leave to appeal out of time.5. That the annexed Memorandum of Appeal be deemed duly filed and served upon the respondents.6. That costs of this application be in the cause.

2. The application is premised on the grounds on the face of it and further based on the supporting affidavit sworn on June 24, 2022 by Sammy Kamau Wanjiku wherein he deposed that the judgment sought to be appealed from was delivered on April 12, 2022 at the Malindi Chief Magistrates’ Court. That the appellant’s advocates became aware of the said judgment on April 26, 2022 when they were served with a demand notice. The appellant, aggrieved by the said judgment intends to prefer an appeal against the award of loss of dependency. He annexed a copy of the draft memorandum of appeal.

3. The 1st respondent opposed the application. He filed grounds of opposition dated July 12, 2022 indicating that the appellant was guilty of unexplained delay, that the application was an afterthought and an abuse of court process and that the appellant has failed to give any reasonable security.

4. A perusal of the proceedings shows that parties agreed to canvass the application by way of written submissions in the event that they fail to reach an out of court settlement. As at the time when the application was listed for mention on September 21, 2022, parties had not reached a settlement and only the 1st respondent had filed written submissions which I have considered.

Analysis and Determination 5. The statutory provisions in respect to an appeal from the judgment or decree of a subordinate court to the High Court is section 75G of the Civil Procedure Act which provides that: -79G.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.

6. It is not disputed that the judgment in the lower court was delivered on April 12, 2022 and that this application was filed on June 28, 2022 which was beyond the 30 days stipulated in section 79G of the Civil Procedure Act. The appellant explained that their counsel only got to know about the judgment on April 26, 2022. There is evidently delay which is admitted. There is however no explanation why the appellant had to wait for about two months, despite being served with the said judgment within the 30 days statutory period, before filing the appeal. I find this delay inordinate and unexplained.

7. In the circumstances, I find no sufficient cause to grant leave to file the intended appeal out of time. In turn, there is no basis to consider whether or not stay should be granted. The outcome is that the application dated June 27, 2022 lacks merit and should be dismissed with costs to the Respondents.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 1stDAY OF NOVEMBER, 2022. ...................................S.M. GITHINJIJUDGECourt; - Ruling read in absence of both parties....................................S.M. GITHINJIJUDGE1/11/2022CORAM: Hon. Justice S. M. GithinjiMusinga & Company Advocates for the AppellantsWambua Kilonzo & Co. Advocates for the Respondent