[2022] KEHC 11927 (KLR)

Odongo v Murunga & another (Miscellaneous Civil Application E158 of 2021) [2022] KEHC 11927 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11927 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Civil Application E158 of 2021

WM Musyoka, J

May 13, 2022

Between

Ali Munyasia Odongo

Applicant

and

Risper Murunga

1st Respondent

Attorney General

2nd Respondent

(Hon. MA Onyango, Resident Magistrate, in Mumias SPMCCC No. 16 of 2020,)

Ruling

1. The application for determination is the Motion dated October 22, 2021. It seeks leave to file appeal out of time, in respect of a judgment that was delivered on August 9, 2021, by Hon. MA Onyango, Resident Magistrate, in Mumias SPMCCC No. 16 of 2020, and that, should the said leave be granted, the applicant be granted 14 days to lodge the intended appeal.

2. The same is brought at the instance of Ali Munyasia Odongo, who I shall refer hereafter as the applicant. He avers to be aggrieved by the said judgment, which was delivered virtually, in his absence. He states that due to the Covid 19 situation in the country his Advocate could not obtain hard copies of the judgment from court, and that there was also a breakdown of communication between him and his Advocate. He states that the intended appeal raises reasonable grounds. He further states that correspondence addressed to him by his Advocate was not received by him in good time. He has attached to his affidavit in support of the application, sworn on October 22, 2021, a copy of the impugned judgment, a copy of a letter from his Advocates dated August 16, 2021, advising him about the said judgment, and a copy of his draft memorandum of appeal.

3. There is a response to the application, through an affidavit by Daniel Were, Advocate. It is not clear who he acted for in the matter, but I suppose he was for the 2nd defendant, and now 1st respondent. He avers that the judgment was delivered in his presence, and that of the advocate for the applicant. He also avers that the applicant was informed of the judgment by a letter dated 16th August 2021, and that the applicant had also visited the offices of his Advocate on August 23, 2021. It is submitted that the applicant was aware of delivery of the said judgment well in time for him to file appeal within time if he so desired, and, therefore, he has not presented a good case for leave to file appeal out of time.

4. The matter came up for hearing on November 8, 2021. The parties left it to me to determine the same on the basis of their filings.

5. I note that the judgment was delivered on August 9, 2021, and this application for leave to appeal out of time was lodged on October 25, 2021. That was roughly two and half months thereafter. It would appear that the applicant was aware of the judgment as early as August 23, 2021, and has not explained why he was not able to file appeal shortly thereafter. Am told that his advocate applied for a typed-copy of the judgment but he was unable to get it on time due to Covid 19. However, he has not displayed any correspondence with the court, as indication whether or not he did apply for the same. Overall, I am not persuaded that there was any good reason for the applicant to fail to file his appeal within good time. .

6. Consequently, I find no merit in the application dated October 22, 2021, and I hereby dismiss the same with costs. It is so ordered. .

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Anyona, instructed by Anyona & Company, Advocates, for the applicant.Mr. Were, instructed by Were & Were, Advocates, for the 1st respondent.