[2022] KEHC 15914 (KLR)

Obaga v Mutua & another (Suing as the Legal Administrator of the Estate of the Late Timothy Kula Mulwa) (Civil Appeal E296 of 2022) [2022] KEHC 15914 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15914 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E296 of 2022

JK Sergon, J

December 1, 2022

Between

Gilbert Otero Obaga

Appellant

and

Joseph Mulwa Mutua & Damaris Ndunge Mulwa (Suing as the Legal Administrator of the Estate of the Late Timothy Kula Mulwa)

Respondent

Ruling

1. This ruling is predicated on the notice of motion dated September 23, 2022 taken out by the appellant/applicant and supported by the grounds set out on its body and the facts stated in the affidavit of advocate Lawrence Njuguna.The applicant sought for an order to extend and/or enlarge time for filing of the record of appeal or issue any directions on the obtaining, filing and serving of the same and a further order to direct the executive officer to fast track the typing of the proceedings ,judgment and decree in Nairobi CMCC 7087 of 2018.

2. The respondent opposed the motion by filing the replying affidavit sworn by their advocate Kisiangani Eddah on October 4, 2022.

3. When the motion came up for interparties hearing before this court, the parties respective advocates chose to rely on the averments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the motion, the facts deponed in the affidavits supporting and opposing the motion and the brief oral arguments.

5. The applicant avers that he filed an application Misc Application E023 of 2022 seeking an order for stay of the judgment delivered on February 11, 2022 which was allowed on May 4, 2022 on condition that they file a memorandum of appeal within seven days, provide a bank guarantee of Kshs 547,275/=within the next 30 days and 60 days to lodge the record of appeal.

6. The applicant further avers that indeed he filed the memorandum of appeal within 7 days and provided a bank guarantee of Kshs 547,275/= but did not comply with the order of filing the record of appeal within 60 days as they had not obtained certified copies of the proceedings, judgment and decree from the registry.

7. He avers that he had requested for the certified copies of the proceedings, judgment and decree from the registry but when the matter came up to confirm compliance with the orders issued on May 5, 2022, the registry informed him that they had been overwhelmed with requests for the aforementioned documents. The court then ordered that they prepare, file, and serve their record within 45 days, and that an appeal be mentioned on November 28, 2022.

8. The applicant is of the view that filing a record of appeal within 45 days will be impossible and further seek enlargement of time to ensure compliance with the court order of September 20, 2022.

9. He avers that the conditional stay lapsed hence they are exposed to execution, the appeal will be rendered nugatory and he will suffer loss and damage if stay orders are not issued.

10. In opposing the motion, the respondent stated that the applicant was granted an additional 45 days to comply when the case was last mentioned in court on September 20, 2022, despite having requested 30 days to do so. As a result, the applicant's claim that she needs more time is unfounded, and his request for more time is simply an attempt to delay the case and thwart justice.

11. The respondent avers that the applicant's justification for disobeying the court order is insufficient and unsupported by details and evidence, and he hasn't even tried to show what steps he took to get the typed proceedings, including providing correspondence with the registry on the subject. Instead, he's just using the court to further his own agenda of laziness.

12. Order 51 rule 6 of the Civil Procedure Rules provides for the mechanics of extension of time even where the application to extend is brought after the lapse of the time allowed for the doing the action relevant to the application as follows:“Power to enlarge time [order 50, rule 6. ]6. Where a limited time has been fixed for doing any act or taking any proceedings under these rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

13. In Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission and 7 Others [2014] eKLR, the Supreme Court while considering the principles applicable in the extension of time stated that:“This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion:a.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;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtc.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time”.

14. Concerning the reasons advanced of difficulties in obtaining the record of typed proceedings from the court registry, this court recognizes that there is an avenue to file an initial record of appeal and thereafter file a supplementary record once the proceedings are obtained. This would have been the best course to take and would be more convincing bearing in mind that it was over a period of 5 months between the date when the applicant was ordered to file his record of appeal within 60 days as from May 4, 2022 and when the order confirming the compliance was made on September 20, 2020.

15. The applicant also failed to annex evidence in form of correspondence or otherwise to confirm what efforts, if any, he made to secure the said typed proceedings. It is not enough to make mere averments devoid of supporting evidence.

16. The delay in this case is about 180 days which the applicant attributes to the delayed supply of typed proceedings in the lower court. Although no certificate of delay is proffered, in my view, the delay in the case is not inordinate and has been explained satisfactorily. The respondent has not produced material upon which it may be concluded that delay will unduly prejudice them.

17. The court is inclined to allow the application to enable the court to hear and determine the appeal on its merits. Accordingly, for the reasons set out above, this court makes the following orders:-i.The appellant is granted leave to file a record of appeal within 30 days from the date of this order.ii.Costs of this application will abide the result of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2022. ………….…………….J K SERGONJUDGEIn the presence of:……………………………. for the appellant.……………………………. for the respondent.