[2023] KECA 1518 (KLR)

Munene v Britam General Insurance Company Ltd (Civil Application E263 of 2022) [2023] KECA 1518 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1518 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E263 of 2022

P Nyamweya, JA

December 8, 2023

Between

Kellen Wariara Munene

Applicant

and

Britam General Insurance Company Ltd

Respondent

(An application for leave to file Record of Appeal out of time against the Judgment and decree made by the High Court at Nairobi (C. Meoli J.) dated 25th November, 2021 in the High Court Civil Appeal No. 217 of 2019 Civil Appeal 217 of 2019 )

Ruling

1. Kellen Wariara Munene, the Applicant herein, has filed an application in this Court by way of a Notice of Motion dated 26th July 2022, in which she is seeking the following orders:1. That this Honourable Court do hereby extend/enlarge the time within which to file and serve Memorandum and the Record of Appeal against the Judgment of Hon. Lady Justice C. Meoli delivered on 25ᵗʰ November, 2021. 2.That this Court do specify the period or terms to be complied with as the Court may deem just.

2. The application is supported by an affidavit sworn on even date by the Applicant and submissions dated October 31, 2023, wherein it is stated that a Notice of Appeal was filed against the impugned judgment within time. It is however notable that no copies of the impugned judgment, nor of the said Notice of Appeal have been annexed. There is therefore no way of ascertaining when the time started to run in the circumstances of this application or the period of delay involved.

3. Be that as it may, if the assumption is to be made that the Notice of Appeal was indeed filed within time, the principles governing the exercise of the discretion to extend time under Rule 4 of the Court of Appeal Ruleswere well stated in the case of Leo Sila Mutiso v Rose Hellen Wangare MwangiCivil Application No. Nai 255 of 1997 (ur) as follows:“It is now well stated 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”

4. The Applicant depones to the reasons for the delay in her affidavit as follows:“3. That I am aware as I have been able to see from my Advocate's office that they filed Notice of Appeal herein in time and followed the Proceedings with the Registry immediately but could not file the same without clear instructions from me being that instructions also involves filing fee and Advocates fees.4. That my Advocates could not reach me due to the fact that I have been unwell and when I traveled to India for surgery, I lost my cell phone and this went with all the numbers which I had saved therein.5. That when I came back to the country, I acquired a new number but my Advocates could not reach me on the new number since they did not have the number and at the same time I was not aware that the Judgment had been delivered herein.6. That the reasons of acquiring a new number was necessitated by the difficulties I had in replacing the SIM card being that the one I had was registered under my daughter's name but she is out of the country hence the number could not be given to me….”

5. The evidence the Applicant has annexed to support these averments shows that she was in India for medical treatment in January 2016, while the judgment which is impugned is alleged to have been delivered in November 2021, over five years later. She evidently had no interest in the suit nor in the judgment, having not made any effort to contact her advocates for all that period. The Applicant avers that she “only came to bump into my Advocate Mr. Were at Agha Khan Hospital where I had gone for a check- up and my Advocate had also gone to see his doctor on 5th July, 2022 and that is when he informed me about the Judgment of the High Court”, and she in this respect provided evidence of payments made at Aga Khan hospital on 22nd and 23rd May 2022, before the said chance encounter with her advocate, and it is not evident what the payments are for.

6. No plausible explanation has therefore been given for the delay between November 2021 and July 2022 when the Applicant filed the present application, and I am not able in the circumstances to appreciate the Applicant’s assertions that the delay in filing the Record of Appeal was not deliberate or that she has explained the circumstances satisfactorily. It is my view that the Applicant has been indolent in this matter and is undeserving of the exercise of this Court’s discretion, and the delay in the circumstances is inexcusable and inordinate.

7. Lastly, the Applicant has gone to great lengths to explain why she is of the view that her appeal has good chances of success, both in her affidavit and submissions. However, given that a copy of the judgment that is intended appealed was not annexed, this Court is not in a position to appreciate the said arguments, nor form any opinion as to whether the Applicant’s intended appeal will succeed.

8. The Notice of Motion application dated July 26, 2022 is therefore found to be unmerited, and is hereby dismissed with no order as to costs.

9. Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. P. NYAMWEYA.......................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR