[2023] KEHC 24640 (KLR)

Nthiga v Nyaga (Miscellaneous Application E016 of 2023) [2023] KEHC 24640 (KLR) (1 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24640 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Application E016 of 2023

LM Njuguna, J

November 1, 2023

Between

Jackline Wanjira Nthiga

Applicant

and

Francis Ndwiga Nyaga

Respondent

Ruling

1. The applicant has filed a notice of motion dated April 28, 2023, being supported by the grounds set out on the face of the application as well as the facts deposed in the supporting affidavit thereof. The orders sought are as follows:a.That the honourable court be pleased to grant the applicant leave to appeal out of time against the judgment delivered on November 29, 2022 in Embu CMCC 172 of 2013;b.That the costs of this application be in the cause.

2. The applicant deposed through counsel that the delay in filing the appeal was occasioned due to the fault of counsel when the letter requesting for typed proceedings was misfiled in the office. That the said letter was discovered as misfiled after the Christmas break and was duly filed on 13th January 2023 immediately after the inadvertence was discovered. That further delay was occasioned because the court delayed in availing the typed proceedings and certified copy of judgment. They deposed that the respondent will not suffer any prejudice if the orders sought are granted.

3. The respondent filed a replying affidavit stating that the application lacks merit and that the delay in filing the appeal had not been satisfactorily explained. That the applicant should have filed a memorandum of appeal as she awaits the typed proceedings which were only necessary for filing of the record of appeal and not the memorandum of appeal. He urged the court to dismiss the application.

4. In this application, the court directed the parties to file their submissions and both partied complied.

5. It was the applicant’s submissions that the impugned judgment was delivered on November 29, 2022. That order 50 rule 4 of the Civil Procedure Rules provides for the court’s Christmas break between 21st December and 13th January, both dates inclusive, and that such dates shall be omitted from any computation of time for amending, delivering or filing of any pleadings. That the letter requesting for typed proceedings was filed on 13th January 2023 without delay. That according to the draft memorandum of appeal, the applicant has an arguable case on appeal and that the respondent will not suffer prejudice if the orders are granted. Reliance was placed on the case of Mombasa County Government v Kenya Ferry Services & 2 others Supreme Court of Kenya at Nairobi in Application Number 29 of 2018.

6. On the other hand, the respondent relied on order 42 rule 1 of the Civil Procedure Rules. He submitted that the applicant has not explained why the memorandum of appeal was not filed within time and that the typed proceedings are only necessary to enable filing of the record of appeal. That the applicant has not satisfied the court that the orders should be granted in light of section 79G of the Civil Procedure Act. He relied on the case of Kenya Commercial Bank Limited v Kenya Planters Co-operative Union (2010) eKLR.

7. The issue for determination is whether the application meets the threshold for issuance of orders for leave to appeal out of time.

8. On the issue of whether the court should grant the applicant leave to appeal out of time, the applicant must satisfy the court that the application for leave had been brought timeously and without delay, but if there is delay then it is for good reason and that if the court does not grant the orders sought, the applicant will suffer irreparable loss. This prayer is to be granted on a discretionary basis and may be denied where the court is of the view that there is no good reason why the appeal was not filed within time.

9. Section 79G of the Civil Procedure Act provides:“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.”

10. Similarly, in the case of Edith Gichungu Koine v Stephen Njagi Thoithi (2014) eKLR the court held thus:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”

11. The impugned judgment was in favour of the defendant/respondent where plaintiff’s case was dismissed. According to the above provision, the plaintiff/applicant had 30 days from November 29, 2022 to file the appeal. This means that the applicant had until January 28, 2023, considering the excluded days, to file the appeal. It is her counsel’s case that there was misfiling of the letter requesting for proceedings at his chambers. The said letter was still filed within the 30 days but no memorandum of appeal was filed as rightly stated by the respondent. The application herein is dated April 28, 2023. This is about 3 months delay from the end of January when the appeal timeline rightly expired. I am not satisfied that this delay is sufficiently explained. The applicant had enough time to file the memorandum of appeal after the court’s Christmas break. Further, delay in receiving typed proceedings is not sufficient reason for the delay.

12. However, article 48 of the Constitutionof Kenya 2010 guarantees every person right of access to justice. Further, article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. I am therefore inclined to grant the applicant leave to appeal out of time only on this basis.

13. I am reminded of the role of the court in administration of justice as stated in the case of Kamuti v Kariuki (Miscellaneous Civil Cause E001 of 2023) (2023) observed that:“The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out unless for a good reason.”

14. In the end, having considered the arguments of both parties, and relevant laws and in the interest of justice, the application is hereby allowed and the following orders to issue:i.The applicant is hereby granted leave to file appeal out of time.ii.The appeal to be filed within 14 days from the date of this ruling.iii.The record of appeal to be filed within 7 days after filing of the appeal.iv.The appeal to be prosecuted within 45 days from the date of filing of the record of appeal, failing which it shall stand dismissed.v.The costs of the application shall abide the outcome of the appeal.

15. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OFNOVEMBER, 2023. L. NJUGUNAJUDGE……………………………….for the Applicant………………………………for the Respondent