[2022] KEHC 1602 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIDVION

MISC. APPLICATION NO. 123 OF 2020

STANDARD MEDIA GROUP PLC....................1ST APPLICANT

JOSEPH ODINDO...............................................2ND APPLICANT

CHARLES OTIENO.............................................3RD APPLICANT

CAROLINE KIMUTAI.........................................4TH APPLICANT

-VERSUS-

HON.GEORGE PETER OPONDO KALUMA.....RESPONDENT

RULING

1. This ruling is predicated on the Notice of Motion dated 2nd March,2020 taken out by the Applicants and supported by the grounds set out on its body and the facts stated in the affidavit of the 1st Applicant. The applicants sought for an order for leave to appeal out of time against the judgment delivered on 20th December, 2019 in the Communications and Multimedia Appeals Tribunal in Complaint No. 4 of 2018 and the draft Memorandum of Appeal dated 2nd March, 2020 be deemed as properly filed subject to payment of Court filing fees.

2. The respondent opposed the Motion by filing the replying affidavithe swore on 11th June 2020.

3. When Motion came up for interparties hearing before the court,the parties were directed to file and exchange written submissions. I have considered the grounds set out on the face of the motion dated 2nd March 2020 and the facts deponed in the rival affidavits.

4. Section 79G of the Civil Procedure Act stipulates that an appealagainst 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.

5. Moreover, under the provisions of Section 95 of the CivilProcedure 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.

6. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLRthe 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.

7. Under the first condition touching on length of delay, while it isapparent 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 20th December, 2019 which is close to two and half months prior to the filing of this Motion. In my mind, while there has clearly been a delay in filing the Motion, I do not find the delay to be inordinate.

8. Concerning the reasons for the delay, the applicant explainedthat the delay was occasioned by the fact that they changed their representation from the previous advocates to this current one and therefore did not lodge the intended appeal on time. The advocates on record managed to obtain the judgment towards the end of the month of January 2020 and had to read the same and appreciate the reasoning behind the decision before advising further.

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

10. As relates to the condition on whether or not an arguable appealexists, it is the applicants’ assertion on the one hand is that the appeal raises meritious grounds which this court ought to adjudicate to and determine. The respondent on the other hand contends that the intended appeal lacks merit and is not arguable but instead is frivolous and would only serve to delay the course of justice.

11. Upon my perusal of the grounds of appeal raised in the draftmemorandum of appeal annexed to the Motion, I note that the appeal is challenging is that the appellants had published sufficient information to disclose their respective identities in contravention of the law as well as on how the fine of Kenya Shillings Two million (Kshs.2,000,000/=) was arrived and awarded to the respondent.

12. I am therefore satisfied that the applicants have demonstratedarguable points of law and fact in their appeal.

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

14. Upon my perusal of the record, it is apparent that the judgmentwas in favour of the respondent herein and against the applicants. It therefore follows that the respondent is lawfully entitled to enjoy the fruits of his judgment. Suffice it to say that it would not be in the interest of justice to lock out the applicants who is aggrieved by the judgment of the Communication and Multimedia Appeals tribunal. I therefore find it reasonable for the applicants to be given the opportunity of challenging the decision of the said Tribunal.

15. In the end therefore, the Motion dated 2nd March, 2020 isfound to be meritorious. Consequently, the applicants are granted leave of 14 days to file an appeal out of time.

16. Costs of the Motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022

……………………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1st Applicant

……………………………. for the 2nd Applicant

……………………………. for the 3rd Applicant

……………………………. for the 4th Applicant

……………………………. for the Respondent