[2022] KEHC 13537 (KLR)

Skytech Communication Resources Ltd v San Valencia Limited (Civil Miscellaneous Application E537 of 2021) [2022] KEHC 13537 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13537 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E537 of 2021

JK Sergon, J

October 7, 2022

Between

Skytech Communication Resources Ltd

Appellant

and

San Valencia Limited

Respondent

(Originating from Milimani CMCC No 7833 of 2017)

Ruling

1. This ruling is predicated on the notice of motion dated November 1, 2021 taken out by the appellant and supported by the grounds set out on its body and the facts stated in the affidavit of Ms Tabitha Mutindi Mavindu the applicant’s advocate. The applicant sought for an order for leave to appeal out of time against the judgment and decree delivered on January 31, 2020 in Milimani CMCC No 7833 of 2017 pending the hearing and determination of the appeal.

2. The respondent swore a replying affidavit dated January 25, 2022 to oppose the motion.

3. The motion was canvassed by way of written submissions.

4. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavits supporting and challenging it, the grounds of opposition and the contending written submissions and authorities cited.

5. The orders being sought in the motion are two-fold: first is the order seeking for enlargement of time to appeal and for leave to appeal out of time against the impugned judgment and decree.

6. Section 79G of the Civil Procedure Act stipulates that an appeal against the decision of a subordinate court shall be lodged within 30 days from the date of the decree or the order being appealed against. The provision further stipulates that an appeal can be admitted out of time where sufficient cause has been shown.

7. Moreover, under the provisions of section 95 of the Civil Procedure Act and order 50, rule 5 of the Civil Procedure Rules, the courts have power to enlarge the time required for the performance of any act under the rules even where such time has expired.

8. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal illustrated the conditions to be met in deciding whether to extend the period for filing an appeal out of time and which I shall address hereunder.

9. Under the first condition touching on length of delay, while it is apparent from the record that no copy of the impugned judgment was availed to this court, the parties are in agreement that the impugned judgment was delivered on January 31, 2021 which is close to two years prior to the filing of the motion. In my mind, there has clearly been a delay in filing the motion.

10. Concerning the reasons for the delay, the applicant argued that the delay was caused by the fact that the judgment in question was given without the applicant's advocate on record receiving notice or being informed of it in advance.

11. The applicant further submitted that the delay to file the appeal was occasioned by the inability to obtain a copy of the typed judgment and proceedings until the 20th day of April 2022 from the court registry. On this the applicant relied on the case of Stelcol Corporation Limited v Susan Awuor Mudemb (2021)eKLR that it is trite law that an appeal may be omitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.

12. On the other hand the respondent avers that the applicant was aware of the actual date of judgment and that the applicant’s advocate attended court when the trial court had indicated that the judgment was not ready and will be delivered on the January 31, 2020.

13. It is the respondent’s submission that the applicant was indolent and has offered no reason for its delay in filing this application on time and the failure to file appeal within the prescribed period was deliberate, as the same was marred by lackadaisical approach of the application in seeking its remedy on appeal.

14. Upon considering the explanation given by the applicant, I find the same to be reasonable in the circumstances.

15. As relates to the condition on whether or not an arguable appeal exists, it is the applicants’ assertion on the one hand that the intended appeal has overwhelming chances of success and is arguable. The respondent on the other hand contends that the applicant having received the decretal sum but still waiting for 19 months before filing an appeal indicates that the appeal is clearly an afterthought.

16. Upon my perusal of the grounds of appeal raised in the draft memorandum of appeal annexed to the motion, I note that the appeal is challenging the finding of the trial court on disallowing of special damages. I am therefore satisfied that the applicant has demonstrated arguable points of law and fact in their appeal.

17. In addressing the final condition on prejudice, the applicant asserts that the respondent does not stand to be prejudiced that cannot be adequately compensated by way of costs.

18. Upon my perusal of the record, it is apparent that the judgment was in favour of the applicant herein and against the respondent in the sum of Kshs 4,000,000/= for general damages. It therefore suffice it to say that it would not be in the interest of justice to lock out the applicant who is aggrieved by the judgment of the trial court on the being disallowed special damages. I therefore find it reasonable for the applicant to be given the opportunity of challenging the subordinate failure in assessment on special damages on appeal.

19. In the end therefore, the motion dated November 1, 2021 is found to be meritorious and hence it is allowed in terms of the following orders:i.That the applicant is granted leave of 14 days to file an appeal out of time against the partial judgment in Milimani CMCC No 7833 of 2017 delivered on 31/01/2020. ii.Costs of the motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ……………………J. K. SERGONJUDGEIn the presence of:…………………………… for the Appellant…………………………… for the Respondent