[2022] KEHC 11785 (KLR)

Nation Media Group v Njiru (Miscellaneous Civil Application 56 of 2019) [2022] KEHC 11785 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11785 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Civil Application 56 of 2019

LM Njuguna, J

July 18, 2022

Between

Nation Media Group

Applicant

and

Faith Muthoni Njiru

Respondent

Ruling

1. Before me is a notice of motion dated December 17, 2021 and filed under certificate of urgency and wherein the applicant seeks for orders that:i.Spent.ii.Pending the inter partes hearing and determination of this notice of motion application, this honourable court be pleased to issue an order extending the order of stay of execution previously granted in the ruling and order of this honourable court dated and delivered virtually on September 22, 2021. iii.This honourable court be pleased to enlarge the time for the applicant herein to file and prosecute its appeal against the judgment , decree and orders of Hon M N Gicheru of September 3, 2018 delivered in Embu CMCC 176 of 2016 Faith Muthoni Njiru v Nation Media Group Limited.iv.This honourable court be pleased to issue any other order to meet the ends of justice.v.The costs of this application be provided for.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by Ronald Wakhisi Makokha. The applicant’s case is that on September 22, 2021, this court issued an order staying execution of orders of the lower court made by Hon Gicheru (CM) on September 3, 2018 in Embu CMCC No 176 of 2016 pending the hearing and determination of the intended appeal. That the intended appeal was to be filed and presented within 90 days from the date of the ruling and that on July 23, 2019, it applied for copy of the proceedings of the lower court but the same are yet to be availed despite follow up. It was its case that unless the chamber summons and notice of motion filed herein are heard urgently, the time for the applicant to file and prosecute the appeal shall lapse.

3. The respondent filed a replying affidavit sworn on April 21, 2022 by Morris Guchura Njage and wherein he deposed that the application herein has never been served upon him and that orders previously issued by the court on September 22, 2021 were not strictly adhered to, given that no appeal was filed and presented within 90 days of September 22, 2021 while the last day ought to have been December 22, 2021; the decretal sum of Kshs 6,250,000/= was not deposited in Embu CMCC No 176 of 2016 within 30 days from September 22, 2021 and that having perused the court file after expiry of the 30 days on October 23, 2021, there was no deposit in Embu CMCC No 176 of 2016. Further, that he has perused the court’s file and came across a copy of a deposit slip issued on December 7, 2021 to Nation Media Group Limited in No HCCC 56 of 2019 but the deposit was made 46 days out of time on December 7, 2021.

4. Further, the respondent filed ground of opposition wherein it was stated that the applicant has disobeyed the court orders issued on September 22, 2021 and on February 16, 2022 and therefore, the applicant lost the right to a hearing before this court. That the conduct of the applicant in disobeying the court orders has disentitled it to the exercise of this court’s discretion as sought and further, the applicant has not preferred any appeal against the respondent’s decree given by Embu CMCC No 176 of 2018. It was stated that the right of appeal must be balanced against an equally weighty right that the plaintiff/respondent should enjoy the fruits of her judgment.

5. Directions were given that the application be canvassed by way of written submissions and wherein the respondent submitted that the orders previously issued by this court have never been complied with thus prompting the application herein. He reiterated that the orders dated September 22, 2021 expired on October 23, 2021 and as such, the same no longer exist thus the application herein is frivolous, misconceived and vexatious. That the discretion sought by the applicant to extend the orders which do not exist and that the applicant has failed to discharge its burden to deserve the orders that it is seeking before this court. The respondent submitted that the decree is three years and nine months old and as such, the respondent has been kept out of the fruits of her judgment; therefore, the right to appeal must be balanced against the weighty right of the respondent who need to enjoy the fruits of her judgment. This court was thus urged to dismiss the application herein with costs to the respondent.

6. I have considered the application, replying affidavit and the submissions by the respondent and in my view, the issue for determination is whether the applicant deserves the orders for extension of time to file an appeal.

7. Commencing with the issue of whether the prayer for extension of time is merited, it is trite that 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. That discretion, however, must be exercised judiciously. An appeal from a subordinate court to the High Court is governed by the provisions of Section 79G of the Civil Procedure Act which provides that:“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 a good and sufficient cause for not filing the appeal in time”.[See Paul Musili Wambua v attorney General & 2 Others [2015] eKLR].

8. The Court of Appeal in the case of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR stated that whenever an application for extension of time is before a court, the court ought to take into account several factors specifically, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...”Odek JA in the case of Edith Gichugu Koine (supra) added that:“There is also a duty now imposed on courts to ensure that the factors considered are in consonance with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court.”

9. The question therefore is whether the applicant has satisfied the above conditions.

10. Regarding the length of the delay, the record shows that counsel for the applicant had previously applied for and paid for the certified copy of proceedings on July 23, 2019; it avers that the proceedings are yet to be availed to date despite follow up by the applicant who has been unable to prepare the appeal in the absence of the record of proceedings.{ See Jaber Mohsen Ali & Another v Priscillah Boit & Another E & L No 200 of 2012 {2014} eKLR the court stated that what is unreasonable delay is dependent on the circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In this instance the applicant’s case is that he failed to file the appeal in time for the reason that he was still waiting for certified copies of proceedings.

11. The court via a ruling dated September 22, 2021, allowed an application by the applicant for enlargement of time to file its intended appeal on conditions inter alia that the whole decretal amount be deposited in court within a period of 30 days from the date of the ruling; and that the appeal was to be filed within a period of 30 days failing which, the stay orders would lapse. The respondent avers that the applicant never complied with the said orders and as such, it does not deserve more exercise of this court’s discretion. The respondent has proceeded to point out that in regards to the decretal sum that was to be deposited in court within 30 days from the date of the said ruling, the same was made after 46 days.

12. This court has taken time to peruse the court record and has noted that indeed the judgment that the applicant seeks to appeal against was delivered on September 3, 2018. Further perusal shows that the court proceedings were typed and are in the court file. The applicant has not explained why the same has never been collected and there is no evidence to show that the applicant has made any effort to follow up on the progress of the same. In my view, the applicant has not been keen in following up the same since they were paid for. I say so because the said proceedings contain only a few pages and the same has been ready but the applicant never made any attempt to collect them. Even after the applicant was granted leave to file appeal out of time, there is no evidence that efforts were made to follow up the proceedings in order to comply with the order on filing of the appeal.

13. It is trite that extension of time is an equitable remedy, the grant of which involves the exercise of judicial discretion. This court is fully aware that the applicant has a constitutional right to appeal. Where a party is aggrieved and wishes to pursue an appeal, it would be fair to exercise discretion in his favour and especially where the delay in filing the appeal is not inordinate or even if the delay is inordinate, it is explained to the satisfaction of the court. But, it is trite that equity aids the vigilant and not the indolent. From the numerous infractions and omissions identified, I hold the view that the applicant has never taken the processes of the court and their own appeal with the seriousness it deserves. [Joseph Odide Walome v David Mbadi Akello [2022] eKLR].

14. In my considered view, the applicant has accordingly come to this court with unclean and dishonest hands given that it did not comply with the previous court orders and has not offered a reasonable explanation for the said non compliance to persuade this court otherwise. [See Court of Appeal in Ngunjiri v Mbugua & another (Civil Application 25 of 2020 (UR 17 of 2020) of 2020) [2021] KECA 22 (KLR].

15. For all the above reasons, I find and hold that the applicant’s application herein is an abuse of the court process and the same is hereby dismissed with costs to the respondent.

16. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………………………..for the Applicant…………………………………….………..for the Respondent