[2020] KEHC 2174 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO. 95 OF 2020

DR. VARINDER SUR..............................................APPELLANT

VERSUS

WALI MOHAMED ALTAF JIWA.......................RESPONDENT

RULING

1. By an application dated 24th July, 2020 the Applicant, Dr. Varinder Sur seeks from the court Leave to file his Appeal out time challenging Judgment made on 5th June, 2020 and costs of application to be awarded.

2. The application is based on the grounds on its face and further supportedby an Affidavit and Further Affidavit both sworn by the Appellant/Applicant’s advocateJosyline K. Kimaitaon17th July, 2020and1st September, 2020respectively. He averred that the matter had been listed for mention on10th March, 2020to take a Judgment date which was fixed for8th June, 2020. It is averred that the Judgment was not delivered as communicated owing to disruptions caused by theCovid-19pandemic and the Applicant’s advocate was not aware of any other date fixed by the Court until they were served with a letter from the Respondent’s advocates for computation of costs. It until then when the Applicant learned that the Judgment had been delivered.

3. In addition, the Appellant/Applicant’s advocate deponed that the instructions to appeal were given on 30th June, 2020 and immediately drafted a Memorandum of Appeal. According to the Applicant, the Respondent will not be prejudiced by the orders sought and the court should grant the same in the interest of Justice.

4. The Respondent opposed the application by filing a Replying Affidavitsworn by his advocate,Hamid Mahmood Abdalla. He deponed that theJudgmentwas delivered on5th June, 2020in the presence of the Applicant’s advocate. That after the delivery of the Judgment, the Respondent wrote to the Applicant vide aletterdated8th June, 2020and brought to the attention of the Appellant/Applicant’s advocate that the Judgment had been delivered on5th June, 2020.

5. It is contented that the Applicant had all the time to appeal within time until 5th July, 2020 but despite receiving the instructions to appeal on 30th June, 2020, the Memorandum of Appeal was filed on 24th July, 2020. Mr. Hamid further deponed that the Respondent on 14th July, 2020 made payments of the decretal sum but the same wasdeclined by the Appellant and the Cheque in respect thereof returned tothe Respondent.

6. In the Further Affidavit, M/s Kimaita, Counsel for the Appellant/Applicant deponed that noNoticewas given that the matter was coming up forJudgmenton5th June, 2020and no Appeal would be filed within the stipulated period due toCovid-19disruptions. Further that all the efforts to file theMemorandum of Appealelectronically were futile hence the cause of the delay. Finally, it was averred that theMemorandum of Appealis arguable and it is in the interest of justice that the application be allowed. Parties opted to rely on the pleadings as expressed in the paragraphs above and a date for Ruling set.

Analysis and Determination

7. I have considered the Appellant/Applicant’s application together with thetwo Affidavits which were filed in support thereof. I have also looked the Respondent’s Affidavit filed in opposition to the application. The prayers sought in the instant application are fairly simple to apprehend and the sole issue for determination thereof is whether or not the Applicant has placed before the court material grounds to warrant the exercise of this court’s discretion in extending time within which the preferred appeal can be filed.

8. Based on the materials presented before this court, the court has not hadthe opportunity to glance at the impugned Judgment since none of the parties attached a copy of the said Judgment in either of its pleadings. It is alleged that theImpugned Judgmentwas set to be delivered on8th May, 2020but on the said date the Judgment was not ready. However, the Judgment was delivered on5th June, 2020without anyNoticeto the parties. Consequence thereof, the Appellant/Applicant submitted that part of the delay was contributed by him not being aware that the Judgment had been delivered as well as the challenges brought about byCovid-19pandemic.

9. On the foregoing, it is not in dispute that the Judgment subject of theIntended Appealwas delivered on5th June, 2020while theMemorandum of Appealwas filed on24th July, 2020. The Defendant on the other hand alleged that the Appellant/Applicant was aware of the Judgment as early as on8th June, 2020by virtue of letters addressed to his advocate by the Defendant, informing them that the Judgment had been delivered. Further according to the Defendant, the allegation that the Appellant’s advocate was waiting for instructions to file the Appeal cannot lie because the Appellant’s advocate conceded that they were instructed by the Appellant to file theIntended Appealon30th June, 2020within which the time for appeal had not lapsed.

10. It is a common ground that a preferred Appeal to the High Court ought tobe within days of the delivery of the impugned Judgment. It is also not in contention that the preferred Appeal herein ought to have been filed on or before the5th July, 2020the Judgment having been delivered on5th June, 2020. TheMemorandum of Appealhaving been on24th July 2020was thus filed19 days late. The delay by the applicant is attributed to the confusion that arose in the wake of theCOVID-19pandemic which occasioned challenges. Such challenges related to the mode of delivery of the Rulings and Judgments by the respective courts, the restriction in movements into and out of Mombasa and the directives issued on23rd June, 2020byDeputy Registrar Mombasa Law Courtfollowing the closure of the Court on“a 14 days quarantine period”which affected the Appellant’s ability to file theIntended Appealwithin the30 daysenvisaged underSection 79Gof theCivil Procedure Act. The Applicant even annexed an email made to the court in an effort to file the instant application following the directives issued by the Deputy Registrar but regrettably, the email was not responded to.

11. In the circumstances, I find the delay of 19 days in filing the IntendedAppealnot inordinatevis-à-visthe explanation given by theAppellant/Applicant and accordingly allow the prayer for extension of time as sought.

It is so ordered.

DATED, SIGNED and DELIVERED at MOMBASA on this 27th day of October, 2020.

D. O CHEPKWONY

JUDGE

27/10/2020

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.

D. O CHEPKWONY

JUDGE

27/10/2020