[2023] KEHC 27576 (KLR)

Synergy Gases (K) Limited v Jak Enterprises Company Limited (Civil Suit E204 of 2022) [2023] KEHC 27576 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27576 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit E204 of 2022

F Wangari, J

November 17, 2023

Between

Synergy Gases (K) Limited

Applicant

and

Jak Enterprises Company Limited

Respondent

Ruling

1. The Applicant/Appellant vide an undated Notice of Motion but filed on 20/1/2023 sought for the following orders;a.That the appeal herein be admitted out of time and the Memorandum of Appeal filed on 7/12/2022 be deemed to be properly on record.b.That the costs to be in cause.

2. The application was based on grounds that the judgment was delivered on 27/10/2022 in the absence of the parties. The Appellant’s Advocates only came to know of the same on 5/12/2022 through their Secretary who had failed to note the email with the judgment on time. The Appellant immediately filed the Memorandum of Appeal. The Appellant stated that the delay was not deliberate and no prejudice shall be occasioned to the Respondent.

3. The application was opposed via Replying Affidavit dated 14/3/2023 stating that the Applicant had not given reasonable explanation as to why there was a delay in filing the appeal. The application was filed after the Respondent commenced execution proceedings. Only with the ill intention of delaying the conclusion of the matter.

4. Directions were taken that the application be disposed of by way of written submissions. Both parties complied by filing rival submissions.Analysis and Determination

5. I have considered the application, the Applicant’s submissions, authorities cited as well as the law and in my view, the following are the issues for determination: -a.Whether the application is meritorious;b.What is the order as to costs?

6. On the first issue, the application basically seeks for leave to file an appeal out of time. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. It provides as follows: -“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 decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion just like any other exercise of discretion by the court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR. They include the following: -i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice that will be suffered by the Respondent if the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue;vi.The effect if any on the administration of justice or public interest if any involved.

8. On the period of delay, I note that the judgement which the Applicant seeks to appeal was delivered on 27/10/2022. This application was filed about 41 days out of time. This in my view is not an inordinate delay. On the reason for the delay, the Applicant submits that the delay was occasioned by the omission of the Appellant’s Advocates Secretary to check on the emails thus missing the delivery of the judgment.

9. The came to be aware of the delivery of the judgment on 5/12/2022 and by the time they received instructions from their client to appeal, the time to appeal had already lapsed. This appeal was filed on 7/12/2022. Though it is the mistake of the Appellant’s Advocates, I find that the same should not be meted against the Appellant who without delay, gave instructions to have the appeal filed once it became aware of the judgment.

10. On arguability of the appeal, I note that in law, an arguable appeal/intended appeal is one that need not succeed but one that warrants the court's interrogation on the one hand and the courts invitation to the opposite party to respond thereto. I have perused the Memorandum of Appeal and indeed the grounds therein are arguable and I am thus satisfied that the appeal lodged is one that meets the test of arguability.

11. On the degree of prejudice, the Respondent has not shown the prejudice to be suffered at this juncture. Be that as it may, any prejudice to be suffered can be alleviated through award of costs. The upshot of the foregoing is that I am inclined to allow the application. I am satisfied that the Applicant has successfully navigated the barricades for grant of the orders sought. I thus exercise my discretion in favour of the Applicant.

17. Though the Applicant is successful, it would be onerous to require the Respondent to bear the costs of the application and I thus exercise my discretion to direct that each party to bear its own costs.

18. Flowing from the foregoing, I proceed to make the following orders: -a.The undated Notice of Motion filed on 20/102023 is merited and is thereby allowed on the following conditions;i.The Memorandum of Appeal filed on 7/12/2022 is admitted deemed to have been properly filed.ii.The Record of Appeal be filed and served within the next 30 days.iii.The Appeal be disposed of by way of written submissions.iv.The Appellant to file the written submissions together with the Record of Appeal.v.The Respondent to file the submissions within 14 days after service.vi.Highlighting of submissions on 11/1/2024 before the RRI duty judge.b.Each party to bear its own costs.Orders accordingly

DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 17TH DAY OF NOVEMBER, 2023. ...............................................F. WANGARIJUDGEIn the presence of:N/A by the AppellantMs. Juma Advocate for the RespondentBarile, Court Assistant