[2023] KEHC 26010 (KLR)

Ngugi v Ugi (Civil Miscellaneous Application E148 of 2023) [2023] KEHC 26010 (KLR) (Civ) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26010 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E148 of 2023

AN Ongeri, J

December 1, 2023

Between

Benson Wachira Ngugi

Applicant

and

Benedicta Mwendwa Ugi

Respondent

Ruling

1. The application coming for consideration in this ruling is the one dated 17/3/2023 brought under Sections 74(G) Civil Procedure Act, Orders 50 rule 6, 1; of the Civil Procedure Rules 2010, sections 1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya seeking leave to appeal out of time against the judgment of Hon. P. K. Rotich (SRM) in Milimani CMCC No. 916 of 2019 delivered on 12/10/2022.

2. The application is based on the following grounds;The trial court virtually delivered judgment on 12th October, 2022. i.The trial court in delivering judgment in virtual court, the learned magistrate stated that the court was only reading to the parties in virtual court the determination of the court and the parties would later be furnished with the typed judgment after the court had corrected typographic errors and had the judgment typed.ii.The applicant’s counsel, after the delivery of virtual judgment applied and paid for a copy of the judgment and consistently went to the registry, as well as engaging the court during its routine virtual court appearances for other matters with a view to get a copy of the judgment and it was not until 15th March, 2023 that counsel or the applicant obtained from court a copy of the judgment.iii.That by the time the applicant was issued a copy of the judgment time to appeal had lapsed.iv.That the court in its judgment has awarded interest on special damages from the date of judgment as opposed to the date of filing suit.v.That the court has not given any reason for not awarding interest from the date of filing suit despite the claim in issue being a claim for special damages, which omission is an error on the part of the trial magistrate for which the applicant is entitled to file an appeal to the High Court.vi.The applicant required the judgment to establish the reason for the decision of the court to award interest from the date of judgment as opposed to the date of filing suit.vii.The failure by the court to award interest on special damages from the date of filing suit has denied the applicant legitimate expectation of interest for a total of a number of 1,057 days (w.e.f 19/11/2019 – 12/10/2022) which translates to a sum of ksh.354,919. 00 taking into account credit for the part payments made during the subsistence of the suit before the court; which omission has occasioned a miscarriage of justice to the plaintiff.viii.The applicant has an excusable reason for not filing the appeal on time in that the delay by the court in furnishing the judgment to the applicant on time has delayed the filing of the appeal and necessitated the application now before the court.ix.The application has an arguable intended appeal with high chances of success.x.The application has been made expeditiously without undue delay from the time the court furnished the applicant the judgment of the court.xi.The grant of the prayers in the application shall not occasion any prejudice to the parties.xii.It is just and equitable that the application be allowed.

3. The application is supported by the affidavit of BEnson Wachira Ngugi sworn on 17/3/2023 which reiterates the above stated grounds.

4. The respondent opposed the application in the replying affidavit dated 31/8/2023 in which she deposed that the applicant counsel was present in court when the decision was rendered on 12/10/2022. Consequently, the applicant was aware of judgement and the reliefs granted to him. The applicant was awarded his reliefs as prayed as in his plaint he only sought interest on special damage. He did not specify from when the interest was to be applied on the special damage.

5. He indicated therefore that the intended appeal has no chances of success. The applicant further has not demonstrated any efforts that he took to obtain a copy of the judgement. He has therefore not met the threshold set under section 79G of the civil procedure on the time for filing of appeals in the High Court form the Subordinate courts.

6. The parties filed written submissions as follows; the applicant submitted that it is not disputed that the court did not give reasons for its decision when delivering judgment on the date of delivery. It is not disputed either that the court stated in open court that the parties would get the copy of the judgment after the court had corrected errors and had the typed judgment. It is not disputed that the Applicant applied and paid the judgment in time, and the court delayed to avail the judgment. In view of the undisputed facts, it is not correct to state that the Applicant has not given reason for the delay.

7. The applicant further submitted that it is a general principle that special damages attract interest from the date of filing suit. It is not correct for the Respondent to contend that the plaintiff had not indicated the date from which he claimed interest. He claimed interest on the date he filed his case and it is on the face of the prayer in the plaint before the court. Under Section 26 (1) Civil Procedure Act, it is provided that;“26. (1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.”

8. The applicant argued that the claim for interest serves the purpose for compensation for the loss for the period the plaintiff has wrongfully been deprived of his money, for the duration the debtor, fails to pay the debt, and that is the rationale for the award of interest on special damages from the date of filing suit. It was thus the applicant’s submission that he has met the considerations for the court to exercise its discretion to extend the time.

9. The respondent on the other hand submitted that the applicant applied for a copy of the judgement on 4/11/2022 after having been delivered on 12/10/2022 and therefore it is the respondent’s contention that the intended appeal is an afterthought as the applicant has not explained the delay in applying for a copy of the judgement.

10. The respondent submitted that it is well settled that parties are bound by their pleadings and allowing the appeal on an issue that was not pleaded would prejudice her. The appeal rises one singular issue on interest from the date of filing suit which was not pleaded and was not an issue for determination in the trial court.

11. The sole issue for determination is whether the applicant should be granted leave to appeal out of time.

12. Section 79G of the Civil Procedure Act provides as follows;“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for 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."

13. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi V Kenya Airways Ltd [2003] eKLR. They include the following:i)The period of delay;ii)The reason for the delay;iii)The arguability of the appeal;iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;v)The importance of compliance with time limits to the particular litigation or issue; andvi)The effect if any on the administration of justice or public interest if any is involved.

14. I have considered the reasons for delay in filing the appeal.

15. I grant the applicant here to appeal out of time on condition that the appeal is filed within30 days of this date and the same is prosecuted within 90 days of this date.

16. Failure to comply, the appeal to stand dismissed after the lapse of 90 days.

17. The costs to abide the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. ......................................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Applicant……………………………. for the Respondent