[2023] KEHC 23882 (KLR)

Susat v Canobbio & another (Civil Appeal 131 of 2022) [2023] KEHC 23882 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23882 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 131 of 2022

SM Githinji, J

October 19, 2023

Between

Gabriella Susat

Appellant

and

Pietro Canobbio

1st Respondent

The Hon. Attorney General

2nd Respondent

(Being an Appeal from the decision and/or Ruling of the Chief Magistrate Court at Malindi delivered by Hon John Ongondo – SPM on 1st November, 2022 in Malindi Cmcc No.415 of 2009)

Ruling

1. On 6th December 2022, the Appellant filed a memorandum of appeal dated 30th November 2022 challenging the ruling of Hon. Ong’ondo SPM in Malindi Civil Suit No. 415 of 2009 delivered on 1st November 2022. Approximately two months later, the 1st Respondent filed a Notice of Motion application dated 9th February 2023 entrenched under section 1A, 3A, 63 (e) and 79G (1) and (2) of the Civil Procedure Act; and Order 2 Rule 15, Order 51 Rule 1 of the Civil Procedure Rules. The 1st Respondent wants this court to issue the following orders; -1. That the appeal be struck out for being filed out of time without leave of the court.2. That the costs of this application be provided for.

2. It is this application that is before this court for determination. The same is based on the grounds enumerated on the face of the motion and supported by the affidavit sworn by the 1st Respondent on the even date. The 1st Respondent deposed that judgment was delivered in Malindi CMCC 415 of 2019 on 20th May 2022 and a decree issued on 18th July 2022. The same court subsequently delivered a ruling regarding the judgment on 1st November 2022. The present appeal was filed on 6th December 2022, to him, out of time and without leave of the court hence the same is scandalous, frivolous, vexatious, an abuse of the court process and should be dismissed.

3. The Appellant opposed the application. She filed a Replying Affidavit on 11th July 2023 wherein she deposed that ex-parte judgment was delivered against her in the subordinate court having failed to participate in the hearing therein. Consequently, she filed an application dated 4th July 2021 seeking orders inter alia that the subordinate court do set aside the ex-parte hearing and judgment dated 20th May 2022 and that she be granted leave to defend the suit therein. That application was heard and dismissed vide a ruling dated 1st November 2022. Dissatisfied with that ruling, she preferred the present appeal.

4. The Appellant further deposed that any delay in filing the appeal was not deliberate but was occasioned by the delay in obtaining typed proceedings from the court’s registry despite requesting for the same on two different occasions- on 1st November 2022 and 28th November 2022. She urged the court not to find the delay inordinate; exercise its discretion and extend time for filing the appeal in her favour.

5. The application was canvassed by way of written submissions which I have carefully considered and preferred the following issues for determination; -1. Whether the appeal should be struck out for being filed out of time.2. Who shall bear the costs of the application?

6. Section 79G provides for filing of appeals from the subordinate courts to the high court. It provides as follows; -“Time for filing appeals from subordinate courts; Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

7. The facts in this case are undisputed. The Appellant filed the present memorandum of appeal on 6th December 2022 against the lower court’s ruling delivered on 1st November 2022. The time which the appeal ought to have been filed expired on 30th November 2022. It was therefore incumbent that the Appellant sought the leave of this court before filing her appeal.

8. However, bearing in mind that the Civil Procedure Act and Rules provide room for this court to extend time in such cases, and given that the delay was only of 5 days, I feel the need to invoke this court’s inherent powers to save the appeal at this premature stage and have the same determined on merit, in the interest of justice. I am persuaded by the reasoning in D.T. Dobie & Co. (Kenya) Ltd. v Joseph Mbaria Muchina & Another (1980) eKLR to the effect that:“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing reasonable cause of action or being otherwise an abuse of court process. At this stage the court ought not to deal with any merits of the case for that it is a function solely reserved for the judge at the trial as the court itself is not surely fully informed so as to deal with the merits “without discovery, without oral evidence tested by cross examination in the ordinary way.” (Seller, L.J(Supra)). As far as possible, indeed not at all of the action or make it uncomfortable or restrict the freedom of trial judge in disposing off the case in the way he thinks right.... A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a lawsuit is for pursuing it.No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”.

9. In the spirit of the above, I will not strike out the appeal. The memorandum of appeal as filed is hereby deemed to be properly on record. The Notice of Motion application dated 9th February 2023 is hereby dismissed; parties to bear their own costs.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 19TH DAY OF OCTOBER, 2023. ...................................S.M.GITHINJIJUDGE