[2022] KEHC 14574 (KLR)

Onjonga v Kedaco Savings & Credit Cooperative Society Limited (Miscellaneous Civil Appeal E112 of 2022) [2022] KEHC 14574 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14574 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Appeal E112 of 2022

JN Mulwa, J

October 13, 2022

Between

Peter Ouma Onjonga

Applicant

and

Kedaco Savings & Credit Cooperative Society Limited

Respondent

Ruling

1. There is before this court an application dated February 25, 2022 brought by the applicant Peter Ouma Onjonga under article 48, 50(i) of the Constitution, and sections 3 & 79G of the Civil Procedure Act. The applicant seeks orders for extension of time to file an appeal out of time, from the judgment of the chairman of the Cooperative Tribunal delivered on March 25, 2021.

2. The reasons for the delay are stated in the supporting affidavit sworn by the applicant on the February 25, 2022 and grounds on the face of the application.

3. The respondent Kedaco Savings and Credit Cooperative Society opposes the applicant vide a replying affidavit sworn on the May 24, 2022 by one Amos Mwangi, who describes himself as a member of the respondent society. Both parties filed written submissions to urge their respective positions. I have carefully considered both parties’ pleadings, affidavits and submissions, and cited authorities.

4. The only issue that arises for determination is whether to grant or deny leave to the applicant to lodge an appeal out of time.The claim before the Cooperative Tribunal was for a sum of Kshs 652,000/= being refund of sums illegally deducted from his salary from the year 2011 to December 2015, and costs of the suit. The tribunal found no merit in the claim and dismissed it with costs and interest.

5. Being dissatisfied, the applicant applied for proceedings from the tribunal to enable him lodge the appeal, but the tribunal delayed up to the February 15, 2022 when the proceedings were supplied, and was issued with a certificate of delay. Upon receipt of the formal records and proceedings, the applicant filed a memorandum of appeal 10 days thereafter on the February 25, 2022.

6. On the above grounds, the applicant has urged that as the delay was caused by the tribunal, he ought to be granted leave to file an appeal out of time.

7. On the other hand, the respondent by its replying affidavit sworn on the May 24, 2022 by one Amos Mwangi, a member of the cooperative society submits that, the applicant could have accessed the judgment upon request within a week, and also that it is a mandatory requirement that the certified copy of the decree or under proceedings may be filed and later, by a court order.

8. It is averred by the respondent the eleven months delay by the applicant, when he had a copy of the judgment was inordinate and that no sufficient cause was offered to the court.

9. Section 3A and 79G of the Civil Procedure Act donates inherent power to the court to make such orders as may be necessary for ends of justice or to prevent abuse of the court process. In particular, section 79G provides for the time for filing an appeal, being 30 days from the date of judgment or order, but this time is not cast in stone. The provision also provides that an appeal may be admitted out of time if the appeal satisfies the court that he had good and sufficient cause for not filing the appeal in time.

10. The Court of Appeal in the case of Paul Musili Wambua v AG & 2 others [2015] e KLR rendered that:-“… it is now settled by a long line of authorities that the decision whether or not to extend the time for filing an appeal the judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whims of caprice…”The court further went ahead to state the conditions to be taken into account;1)The length of the delay2)Reasons for the delay3)Channels of the appeal succeeding4)Decree of prejudice to the respondent if the application is granted.

11. The delay of eleven months was explained that, the tribunal failed to furnish the applicant with proceedings up to the February 15, 2022 and a certificate of delay issued. In Mwangi S. Kaimenyi v AG & another [2014] eKLR; the court held that;“… inordinate delay should not be difficult to ascertain once it occurs, the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexecusable…”

12. Given the facts and background as well captured in both parties’ submissions, I am not convinced that the delay was caused by the applicant at all. It is not entirely true that a judgment without the proceedings, for purposes of filing an appeal is sufficient. That is the reason why a certificate of delay is normally issued to an applicant to show the cause for the delay.

13. By the respondents replying affidavit, the respondent seems to be arguing the appeal, not the reasons as to why the court ought to deny the applicant the orders sought. By the said arguments and averments, there exists an appeal worthy of argument, and likely to succeed. That in my view shows clearly that, the intended appeal is arguable, and likely to be successful.

14. On the degree of prejudice to the respondent, if the application is granted, I find no prejudice that may not be compensated by an award of costs or damages.

15. To oust the applicant from the seat of judgment by disallowing his application would be against the Constitution imperatives stated at article 50(1) that every person has a right to have any dispute resolved by the application of the law before a court or any independent and impartial tribunal or body.

16. In the matter of delay caused by lack of typed proceeding, the Supreme Court of Kenya, the apex court rendered that:-“a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.” In the end, I am persuaded that the applicant’s application dated March 25, 2022 is merited. It is allowed.

17. Towards that therefore; the applicant is directed to file a fresh memorandum of appeal and serve within 7 days of this ruling. The applicant is further directed to file the record of appeal within 30 days, as the proceedings are now at his disposal.The costs of the application shall abide the outcome of the appeal.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 13TH DAY OF OCTOBER, 2022J. N. MULWAJUDGE