[2022] KEHC 561 (KLR)

Mugambi v Materninty Home (Civil Appeal 575 of 2014) [2022] KEHC 561 (KLR) (Civ) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 561 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil Appeal 575 of 2014

JN Mulwa, J

June 9, 2022

Between

Duncan Kinyua Mugambi

Appellant

and

Materninty Home

Respondent

Ruling

1. The Appellant/Applicant by his chamber summons application dated 1st December 2021 seeks for orders that;a.Spent;b.The Appellant/Applicant be granted leave to file an Appeal out of time at the Court of Appeal at Nairobi against part of the judgment delivered in this case on the 29th day of November, 2019 by Hon. Justice C. Kariuki.c.Costs of this Application be costs in the cause

2. The Applicant has not cited the legal provisions under which he approaches the court, save for grounds stated at the face of the application and depositions in the Supporting Affidavit and the Supplementary Affidavit he swore on the 1st December, 2021 and 11th February, 2022 respectively. He states that the impugned judgment was delivered on 29th November, 2019 wherein the Plaintiff’s case was allowed and the Respondent’s counter-claim dismissed with no orders as to costs.

3. t is the Applicants case that the time to file an appeal lapsed when he was seeking justice and indeed filed several applications both in this court and the court below, seeking to have the case retried at the lower court. He contends that his intended Appeal has high chances of success and that the Respondent will suffer no prejudice if the instant Application is allowed.

4. In opposing the application, the respondent filed a Replying Affidavit sworn by Agnes Wairimu Njoroge on 28th January, 2022. It is stated that the Application herein is an abuse of the process of court; that the Applicant attempted clandestinely to fix the matter in the lower court - CMCC 5842 of 2010 for hearing in the hope that the Respondent and the court would not notice. Further it is deponed that the numerous applications the Applicant filed were baseless, and an abuse of court process. The Respondent contends that the Applicant is a vexatious litigant hell bent on dragging the Respondent in court bearing in mind that the matter was instituted in the year 2000. It is the Respondents averment that the application lacks merit and should be dismissed with costs.

5. The Application was canvassed by way of written submissions although the Respondent indicated that they will not be filing any submissions. I have considered the Application, the Affidavits for and against and the Applicant’s submissions.Section 7 of the Appellate Jurisdiction Act, cap 9 Laws of Kenya provides;“7. Power of High Court to extend timeThe High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired.

6. In the above provision, it can be deduced that the High Court has jurisdiction to extend time for appeals to the Court of Appeal in three instances, thus;a.Giving notice of intention to appeal from the judgement of the High Court;b.Making an application for leave to appeal;c.Certify that a case is fit for an appeal.

7. Extension of time has been provided for under Rule 4 of the Court of Appeal Rules that;“4:Extension of timeThe Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”

8. The court referred to in Rule 4 above has been defined in Rule 2 to mean the Court of Appeal. It appears then that this court has no jurisdiction to extend time limited under Rule 82(2) of the Court of Appeal Rules and that such power is a preserve of the Court of Appeal.I am persuaded by the decision of Odunga. J. in Nyamodi Ochieng Nyamogo v Telkom Kenya Limited[2012]eKLR where the judge held;“It is clear that the High Court’s powers under section 7 aforesaid is limited to three instances and these are giving notice of intention to appeal from a judgment of the High Court and for making an application for leave to appeal or for a certificate that the case is fit for appeal. Nowhere is it mentioned that the High Court may extend time limited under rule 82(2) of the Court of Appeal Rules.”

9. Be that as it may, the court must be persuaded and satisfied that the application falls within the three parameters stated above. Upon consideration of the reasons advanced by the Applicant for his failure to file the Notice of Appeal of his intention to appeal to the Court of Appeal, I find no such plausible or sufficient reasons advanced; more so, when the Applicant states that he was not ignorant. See Mukora Mwangi v Charles Gichina Mwangi, Civil Application No. NAI 26 of 2014 where the following conditions were stated for consideration,a.Length of delayb.Reasons for the delayc.Chances of appeal succeedingd.Decree of prejudice if application is granted.

10. I have stated above that no plausible or sufficient reasons were tendered by the Applicant. As to prejudice, it is noted that this is a very old case, having been filed in 2014. Litigation must come to an end. Definitely, continued delay of conclusion of the case shall cause prejudice to the Respondent. Though the court is aware that the law does not set out any minimum or maximum period of delay, if sufficiently explained, I find no sufficient explanation to warrant the orders sought by the Applicant being granted - see George Kagima Kairuki & 2 others v George M Gichimu & 2 others[2014] e KLR.

11. A plausible and satisfactory explanation is the key to unlock the court’s unfettered discretion – see George Kagima Kariuki above. The parties interests ought to be balanced so as not to cause undue prejudice to either of them.

12. I therefore find no plausible reasons to persuade me to grant the orders ought by the Applicant.The application dated 1/12/2021 is dismissed with costs to the Respondent.

DATED SIGNED AND DELIVERED THIS 9th DAY OF JUNE 2022. J.MULWAJUDGE