[2022] KEHC 443 (KLR)

Pyramid Construction Limited v Equity Bank (K) Limited & another (Miscellaneous Civil Application E57 of 2021) [2022] KEHC 443 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 443 (KLR)

Republic of Kenya

In the High Court at Busia

Miscellaneous Civil Application E57 of 2021

JR Karanja, J

May 12, 2022

Between

Pyramid Construction Limited

Applicant

and

Equity Bank (K) Limited

1st Respondent

Keysian Auctioneer

2nd Respondent

Ruling

1. The Notice of Motion dated 12th November 2021 seeks the basic order that leave and/or extended time be granted to the applicant, Pyramid Construction Ltd, to enable it lodge an appeal against the judgment and/or decree of the lower court in Busia CMCC No. 491 of 2015. The grounds in support of the application are set out in the notice of motion and buttressed by averments contained in the supporting affidavit dated 12th November 2021, deponed by the applicant’s director, Henry Lelei.The respondents, are Equity Bank (K) Ltdand Sylvester Wandera. A replying affidavit in opposition to the application dated 5th January 2022 was filed by the first respondent through its counsel, Betty Maloba. Apparently, the second respondent did not file any response to the application.

2. Basically, it is discernable from the supporting affidavit that the impugned judgment involved the applicant as the first defendant and the first respondent as the plaintiff. The second respondent was the second defendant in the matter.A ruling in the matter was delivered on 30th September 2021 but the applicant was dissatisfied with a part thereof and filed its memorandum of appeal on 12th November 2021, even though it is dated 14th October 2021. Apparently, the memorandum of appeal was formally filed on 12th November 2021 which was past the prescribed period of lodging an appeal. It was for this reason that the present application was made, but opposed by the first respondent with a suggestion that it was filed after an inordinate delay and in disobedience of a court order for a deposit into court of the decretal sum and payment to the first respondent of throw away costs amounting to ksh.10,000/=.

3. It is the first respondent’s contention that the application ought to be dismissed unless the applicant first and foremost expunges the apparent contempt of court. At the hearing of the application by way of written submissions, the applicant was represented by Morgan Omusundi Law firm while the first respondent was represented by Maloba & Company Advocates.The second respondent never made any appearance in the matter neither did he participate in it.

4. The proviso to s.79G of the Civil Procedure Act provides for an admission of an appeal out of time if the applicant shows good and sufficient cause for the delay in filing the appeal in time and under Order 50 Rule 6 of the Civil Procedure Rules, the court is granted power to enlarge time where a limited time has been fixed for doing any act.It would therefore allow that extension of time is a matter of discretion which discretion has to be exercised judiciously guided by the principles set out in the leading case of Ivita vs. Kyumbu(1984) KLR 441, where it was stated that the test is whether the delay is prolonged and inexcusable.

5. Herein, the impugned ruling was made on 30th September 2021. The applicant had a period of thirty (30) days from that date within which to file an appeal. However, the applicant filed the appeal effectively on 12th November 2021, way past the prescribed period translating to a period of approximately one and a half month delay.The applicant explains that the appeal was actually filed within time on 14th October 2021 via e-mail, but due to a delay in response by the court or due to technological lapses the memorandum of appeal was not registered within the set timeframe. This therefore compelled the applicant to physically visit the court registry and have the memorandum of appeal formally registered and filed. What the applicant was saying was that the delay in filing the appeal was not deliberate and was occasioned by factors beyond its control. That may have been so, but the applicant ought to have obtained a supporting affidavit from a court official to establish the fact.

6. Nonetheless, the delay, given the circumstances cannot be said to have been inordinate or unreasonable. In any event, the first respondent was herein more concerned with the failure of the applicant to obey court orders rather than the delay in filing the appeal within time. This court holds the view that delay was properly explained by the applicant and therefore excusable.In that regard, the present application is allowed in terms of prayers (b) and ( c ) of the Notice of Motion, on condition that the applicant complies with the orders made by lower court against itself on 30th September 2021 for payment to the first respondent of throw away costs amounting to ksh.10,000/=. For avoidance of doubt, this condition applies to the aforestated throw away costs only and not the further order to pay or deposit into the court the decretal amount and must be fulfilled in the next seven (7) days from this date hereof failure to which the application shall stand dismissed forthwith with costs to the first respondent.Ordered accordingly.

J.R. KARANJAHJ U D G EDATED & DELIVERED THIS 12TH DAY OF MAY 2022.