[2022] KEHC 26971 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

APPEAL NO. E067 OF 2021

MARIA ANGELS MESEGUER FERRES .........APPLICANT

VERSUS

ERIC-SERGE HALLARD...............................RESPONDENT

RULING

1. Before this Court is the Notice of Motion application dated 4th August 2021 in which the applicant MARIA ANGELS MESEGUER FERRES seeks the following:-

“1. THAT the honourable court be and is hereby pleased to grant leave to the plaintiff/applicant to lodge an appeal in respect of the orders as reposed in the impugned ruling and order dated and delivered on 2nd July 2021, being the order that is unconscionable for the plaintiff/applicant to seek school related expenses arrears amount to Kshs 5,305,410/- in sum of rent and utility bills for the children while in Barcelona.

2. THAT the honourable court be and is hereby pleased to make an order that the Memorandum of Appeal herein be deemed as properly filed and on record.

3. THAT the cost of this application be provided for”.

2. The application was premised upon Article 159(2)(d) of the Constitution Kenya. Section 1A, 1B, 3A and 95of the Civil Procedure Act, Order 43 Rule (1) (2)and(3) of the Civil Procedure Rulesand all other enabling provisions of the law and was supported by the affidavits of even dated sworn by CAROLYNE RONO an Advocate of the High Court of Kenya as well as by the Further Affidavit dated 15th (month not indicated) 2021 sworn by the Applicant.

3. The Respondent ERIC SERGE HALLARD opposed the application through the Replying Affidavit dated 31st August 2021 as well as the Further Replying Affidavit dated 12th October 2021.

4. The application was canvassed by way of written submissions. The Applicant filed her written submissions dated 27th October 2021 whilst the Respondent relied upon his written submissions dated 13th October 2021.

BACKGROUND

5. The Applicant herein had filed in the Children’s Court a Chamber Summons dated 24th February 2021 seeking orders inter alia that the Respondent pay arrears for school related expenses being the cost of school accommodation for the child Karen Hallard from September 2015 to July 2018 in the amount of Kshs 5,305. 410/-

6. On 2nd July 2021 Hon G.M. Gitonga Senior Magistrate delivered a ruling in which the learned Magistrate held that it was unconscionable for the Applicant to seek arrears for school related expenses of Kshs 5,305. 410/- and rent and utility bills for the children whilst they were living in Barcelona, Spain.

7. Being dissatisfied by the Ruling of the trial court the Applicant filed a Memorandum of Appeal dated 30th July 2021 in which she listed five (5) grounds of appeal. The Applicant also filed this present application seeking leave to appeal said Ruling. The Applicant averred that following delivery of the ruling of 2nd July 2021 she lost contact with her Advocates and was therefore not in a position to instruct them to pursue an Appeal. She sought for enlargement of time within which to file her Appeal.

8. The Applicant submitted that she had an arguable appeal and that no prejudice would be suffered by the Respondent if her application is allowed.

9. In opposing the application the Respondent averred that there had been a two (2) month delay in filing the present application and submitted that the Applicant did not have an arguable appeal. He urges that litigation must come to an end given that the Children who were the Subject of this matter are now all aged over Eighteen (18) years. That the present application was an afterthought was frivolous and amounts to an abuse of court process.

ANALYSIS AND DETERMINATION

10. I have considered the present application, affidavit in reply as well as the written submissions filed by both parties. Section 79(G) of the Civil Procedure Act provides for the period of time within which an appeal should be filed as follows:-

“Every appeal from 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 to time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

11. Section 79(G)therefore provides that an appeal must be filed withinthirty (30)days, but authorizes the court to extend that period where sufficient reason is advanced.

12. The ruling in question was delivered on 2nd July 2021. The Memorandum of Appeal is dated 30th July 2021. The record indicates that the Memorandum of Appeal dated 30th July 2021 was filed in court on same date. Therefore it is manifest that the Appeal was filed within thirty (30)days as stipulated and as such the application dated 4th august 2021 seeking enlargement of time is superfluous. The appeal having been filed within the time provided by statue, there is no necessity for this court to grant leave to file appeal out of time. I therefore find that the appeal dated 30th July 2021 is properly filed and on record.

13. The Respondent has submitted that the appeal filed by the Applicant is not arguable. The court will not at this stage delve into the merits or otherwise of the Appeal. The Respondent will have the opportunity to challenge the merits of the appeal during the hearing of the same. In any event, the Respondent is not in my view likely to suffer any prejudice if the appeal proceeds to hearing.

14. Having already filed a Memorandum of Appeal, the Applicant ought to be accorded an opportunity to prosecute said appeal. No prejudice will be suffered by the Respondent who has the right to challenge/oppose said appeal in court.

15. Finally I find and hold that the Memorandum of Appeal dated 30th July 2021 was filed within the time stipulated by the statue and is properly on record. The same to be served upon the Respondent who has 21 days from the date of service to file a Reply thereto. Each party shall met its own costs as this is a family matter.

DATED IN NAIROBI THIS 11TH DAY OF FEBRUARY 2022.

…………………………………..

MAUREEN A. ODERO

JUDGE