[2020] KEHC 306 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei - J

MISC. CIVIL APPLICATION NO. 1 OF 2020

NICHOLAS MWAKA..............................APPLICANT

VERSUS

RN (Minor suing through

WN as next friend).............................RESPONDENT

RULING

1. The prayers for determination in the application dated 31. 12. 2019 are an order that the intended annexed memorandum of appeal be filed out of time and that the time for filing the memorandum of appeal be enlarged by 30 days from the date when the application is determined. The application is brought under section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. It is supported by the affidavit of Nicholas Mwaka.

2. The background to the application, as gleaned from the pleadings and the annextures thereto, relates to a civil suit 134 of 2010 in the Chief Magistrates Court in Machakos where judgement was delivered on 19. 3.2019. There is a copy of a draft memorandum of appeal, record of appeal, judgement of the trial court and letters requesting for proceedings annexed to the affidavit.

3. The grounds were stated briefly in the Notice of Motion and expounded in detail in the affidavit in support of the application were that judgement in the lower court was delivered and that the applicant is dissatisfied with the same. The applicant averred that it would be in the interests of justice if the orders sought are granted.

4. In opposition to the application is a replying affidavit deponed by RN on 2. 3.2020. The deponent felt that the application was misconceived, lacking in merit and intended to deprive him of the fruits of his judgement. It was posited that there was no explanation for the delay in lodging the appeal in time.

5. Parties opted not to file submissions but relied on their rival affidavits.

6. The issue for determination in this application is Whether the applicant should be granted extension of time and leave to file the appeal out of time.

7. This court has the discretion, for sufficient cause, to extend time under section 79G of the Civil Procedure Act. Sufficient cause should relate to the inability to do a particular act.

Section 79G provides as follows:-

‘‘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 in time. ”

8. The above principles were considered by Duffus P in the case of Mugo & Others v Wanjiru & Another [1970] EA 481 at p.484 where he stated thus;

"Each application must be decided in the particular circumstances of each case but as a general rule the applicant must satisfactorily explain the reason for the delay and should also satisfy the court as to whether or not there will be a denial of justice by the refusal or granting of the application.”

9. The Court of Appeal in Mwangi v Kenya Airways Ltd [2003] eKLR. listed the factors which aid our courts in exercising the discretion whether to extend time to file an appeal out of time and include the following:

a. The period of delay;

b. The reason for the delay;

c. The arguability of the appeal;

d. The degree of prejudice which could be suffered by the Respondent if the extension is granted;

e. The importance of compliance with time limits to the particular litigation or issue; and

f. The effect if any on the administration of justice or public interest if any is involved.

10. I will keep the above principles in mind as I proceed to determine this application. It is not in dispute that the applicant is aggrieved with the decision of the trial court and has a draft memorandum of appeal and commendably even a record of appeal annexed to the application. A careful perusal of the replying affidavit does not give any other reason why the respondent is opposed to the application save that the delay was not explained by the applicant.

11. In this case, the application was filed on 6. 1.2020 that is about nine months after the judgement was delivered. I find the delay to be inordinate but the explanation offered is understandable. I am unable to see the prejudice that the Respondent will suffer if the application is allowed. The applicant in all fairness is entitled to be allowed access to justice under Article 48 of the Constitution by being allowed to ventilate his appeal. I am satisfied that the applicant has easily met the test for grant of order for extension of time as well as leave to file the appeal out of time. The respondent’s discomfiture will be cushioned by an award of costs.

12. In the result the Application dated 31. 12. 2019 succeeds and is allowed in the following terms:

a.The Applicants is granted extension of time to file and serve the memorandum of appeal within 14 days from the date of this ruling.

b.The costs of the application are awarded to the respondent.

It is so ordered.

Dated and delivered at Machakos this 2nd day of December, 2020.

D. K. Kemei

Judge