[2022] KEHC 2977 (KLR)

Tonui v National Bank of Kenya (Miscellaneous Civil Appeal E002 of 2022) [2022] KEHC 2977 (KLR) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 2977 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Civil Appeal E002 of 2022

RL Korir, J

June 20, 2022

Between

Samuel Kipyegon Tonui

Applicant

and

National Bank of Kenya

Respondent

Ruling

1. The Applicant filed a Notice of Motion Application dated 24th January 2022 which sought the following Orders:ISpent.II.Spent.III.That the Applicant be granted leave, to appeal out of time, the Judgment of the Honourable L. Kiniale, Principal Magistrate in Bomet Civil Suit Number 76 of 2015IV.That the Honourable Court do issue any other directions or orders as will further the cause of justiceV.That the costs of this application be in the cause.

2. The Application was brought under Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 79G and 3A of the Civil Procedure Act.

THE APPLICANT’S CASE. 3. It was the Applicant’s case that the Judgment that he sought to appeal was delivered on 25th October 2021. That he wrote to the Executive Officer of Bomet Law Courts and requested for typed proceedings.

4. The Applicant stated that he received the typed proceedings on 19th January 2022 and by then the time for lodging an appeal had lapsed. It was his further case that the delay was occasioned by the court.

5. It was Applicant’s case that they had an overwhelming chance of success in their appeal and that he was willing to comply with any order or condition imposed by this court.

6. The Applicant opined that this application was made without undue delay and in utmost good faith.

THE RESPONDENT’S CASE. 7. The Respondent opposed the Application through a Replying Affidavit dated 18th February 2022 sworn by Samuel W. Mundia. It was its case that the Applicant had failed to demonstrate that he had an arguable appeal that raised triable issues with a high chance of success to enable this court grant the Orders sought.

8. The Respondent stated that the application lacked merit and was an abuse of the court process and that the same ought to be dismissed.

9. I have read through and considered the Notice of Motion Application dated 24th January 2022 and the Replying Affidavit dated 18th February 2022 and they raise one issue for my determination:Whether the Applicant should be granted leave to file an appeal out of time.

10. Section 79G of the Civil Procedure Act provides that:“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.”

11. The discretion to extend time must be exercised within the principles of the law and factors to be considered when determining such an application. The principles were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 OF 2020) UR where it was held:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”

12. The Applicant clearly stated that Judgment was delivered on 25th October 2021. The law allowed him 30 days within which he was to file an appeal. He also stated that he received the typed proceedings on 19th January 2022 which then meant that the delay was approximately one and a half months.

13. The Applicant put the blame for the delay squarely at the court’s feet. From the contents of the Supporting Affidavit sworn by the Applicant, it is my understanding that he believes he could not file an appeal because of lack of typed proceedings. I am persuaded by the case of Paul Njage Njeru v Karija K Mugambi (2021) eKLR where Patrick Otieno J. held that:“The Court takes the learning that the timeline of filing a memorandum of appeal is different from the timeline of filing a record of appeal. Filing a memorandum of appeal does not require the filing of typed and certified proceedings. An Advocate may peruse the Judgment and craft grounds of appeal which can be amended later”.Nothing stopped the Applicant from filing a Memorandum of Appeal within the stipulated 30 days and if need be, upon the receipt of the typed proceedings, apply to make amendments.

14. I find the explanation by the Applicant to be inadequate. It is also salient to note that the Applicant failed to attach a Certificate of Delay to support his argument that he was not supplied with proceedings expeditiously.

15. The importance of giving a sufficient reason for the extension of time to appeal was discussed in the Court of Appeal case of Susan Ogutu Oloo & 2 Others v Doris Odindo Omolo(2019) eKLR where it was held:-“In an application for extension of time, the single Judge has discretion. I am aware that the discretion I have is to be exercised judiciously and not whimsically or capriciously. The guiding principles on the issue of extension of time was laid out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR Sup Ct Application No 16 oF 2014. The Supreme Court aptly stated extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.

16. However, as earlier indicated, the time that has lapsed between the date of the Judgment and the date of filing this application was approximately one and a half months. It is my finding that the delay was not inordinate. There is also no demonstration that the Respondent will suffer prejudice if the Applicant is allowed to exercise his right to appeal.

17. In exercise of my judicial discretion, I grant prayer 3 of the Notice of Motion dated 24th January 2022.

18. The Applicant shall file and serve his Record of Appeal strictly within 30 days from the date hereof. Failure to abide by this timeline will invalidate the leave granted.

19. The Applicant, though successful, is not entitled to costs in this application.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 20TH DAY OF JUNE, 2022. ..........................R. LAGAT-KORIRJUDGERuling delivered virtually in the presence of Mr. Chirchir for the Applicant, Ms. Kosgei holding brief Mr. Tele for the Respondent and Kiprotich (Court Assistant) and emailed to the parties at: