[2020] KESC 16 (KLR)

Olotch v Pan Africa Insurance Co Limited (Civil Application 14 of 2020) [2020] KESC 16 (KLR) (Civ) (4 September 2020) (Ruling)

William Olotch v Pan Africa Insurance Co. Limited [2020] eKLR

Neutral citation: [2020] KESC 16 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Civil

Civil Application 14 of 2020

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

September 4, 2020

Between

William Olotch

Applicant

and

Pan Africa Insurance Co Limited

Respondent

(Being an application for extension of time to file an application for review of the Ruling of the Court of Appeal at Nairobi (Ouko (P), Koome & Murgor, JJA) dated 22nd May 2020 declining to grant certification in Civil Application No. SUPP 15 of 2019)

Ruling

(1)Upon perusing the Notice of Motion by the Applicant dated 29th June 2020 and filed on 30th June 2020, which application is brought pursuant to the provisions of Section 23(2)(b) of the Supreme Court Act, 2012 and Rules 15(2) and 31 of the Supreme Court Rules, 2020 and in which the Applicant seeks enlargement of time to file an application for review of the Ruling of the Court of Appeal (Ouko (P), Koome & Murgor, JJA) in Civil Application No. SUPP 15 of 2019 dated 22nd May 2020; and

(2)Upon perusing the Supporting Affidavit of the Applicant dated 29th June 2020 and the Respondent’s Grounds of Opposition dated 7th July 2020 and filed on 14th July 2020; and

(3)Upon considering the written submissions on record for the Applicant and the Respondent dated 29th June 2020 and 14th July 2020, respectively, wherein the Applicant contends that the delay in filing the application for review to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, including restrictions on travel imposed by the Government and coupled with the challenges in accessing reliable internet; and The Respondent in opposing the application submits that the explanation advanced by the Applicant is not plausible; that the reasons for the delay are not satisfactory, and, that the application lacks merit, is an abuse of the processes of this Court and does not disclose any substantial grounds for the Court to exercise its discretion; and

(4)Having considered the application, the Grounds of Opposition and the submissions filed by the respective parties, by a unanimous decision of this Bench, we find that;(a)This Court has the jurisdiction to consider and allow an application for leave to extend time as settled in Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR and as pronounced under Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;(b)That the application by the Applicant dated 29th June 2020 and filed on 30th June 2020 satisfies the principles set out by this Court in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Mutanga Tea & Coffee Limited v. Shikara Limited & another SC Application No. 19 of 2016, Base Titanium Limited v. County Government of Mombasa & another SC Petition (App). No. 22 of 2018 and Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR on extension of time;(c)We thus find that the Applicant has a reasonable and cogent explanation and adduced sufficient reasons for the inadvertent delay in filing his application for review of the Court of Appeal decision on certification in Civil Application No. SUPP 15 of 2019;(d)The Respondent has not shown what prejudice shall be occasioned upon him if the Applicant’s application is allowed, in the instance.

(5)In the circumstances, we now make Orders as follows;(a)The Notice of Motion by the Applicant dated 29th June 2020 and filed on 30th June 2020 is hereby allowed;(b)The draft Originating Motion marked as “WO-4” annexed in the supporting affidavit of the Applicant is hereby allowed and deemed as duly filed and shall be served upon the Respondent within 14 days of this Ruling;(c)The Respondent shall file and serve its response to the Originating Motion within 14 days of service;(d)The Deputy Registrar shall issue any and further directions as may be deemed necessary in the circumstances;(e)Each party shall bear its own costs.

(6)Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF SEPTEMBER, 2020. ............................P. M. MWILUDEPUTY CHIEF JUSTICE & VICEPRESIDENT OF THE SUPREME COURT..................................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT..............................S. C. WANJALAJUSTICE OF THE SUPREME COURT................................NJOKI NDUNGUJUSTICE OF THE SUPREME COURT...........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA