Anastacia Nduku John v Aggrey Ogutu Oyugi [2017] KEHC 1066 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 62 OF 2017

ANASTACIA NDUKU JOHN ...................... APPELLANT

VERSUS

AGGREY OGUTU OYUGI ..................... RESPONDENT

RULING

1. The Appellant has brought a notice of motion dated 12th May, 2017 seeking extension of time within which to file appeal. The motion is based on the grounds that the delay in filing the appeal was due to an inadvertent mistake. That counsel was actively involved in the matter but the file could not be traced at the court registry in Mavoko.

2. The Respondent has in opposition to the motion filed grounds of opposition. The grounds are that:

a) That the application is frivolous, vexatious an abuse of court process and an embarrassment of the entire practice of the law.

b) That the applicant has already filed the instant appeal out of time without first seeking leave of court and is merely seeking to cure his irregularity.

c) That there is already an existing appeal filed by the appellant being the instant appeal hence granting him leave to file another appeal will amount to duplicity.

3. The Appellant relied on section 79G, Gerald M’Limbine v. Joseph Kangangi (2009) e KLR and Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 6 others (2013) e KLR and reiterated the averments in the supporting affidavit.

4. Section 79G of the Civil Procedure Act, CAP 21, provides as follows with regard to the time for filing of appeals:

Every appeal from a subordinate court to the High Court shall be filed within aperiod 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 appellantsatisfies the court that he had good and sufficient cause for not filing the appeal in time.(Emphasis mine).

5. Judgment was delivered on 7th April, 2017. In view of the proviso of Section 79 G, the applicant ought to have filed this motion by 7th May, 2017. It is clear therefore that the applicant’s application herein is out of time by 4 days. The next question that begs is whether the delay is unreasonable and whether even with the delay, justice can still be done. The appellant explained and established by the annextures in the supporting affidavit that there were attempts to obtain the proceedings without which they could not file the appeal. Further the delay is for only four days and cannot occasion the respondent any prejudice and the respondent has not also demonstrated any prejudice likely to be suffered that cannot be compensated by costs. Therefore, I find that the delay in filing this motion is not unreasonable. Even though the Applicant has already filed the Memorandum of Appeal albeit out of time, this court has discretion to have the same as duly filed.

6. In the result the Application dated 12/05/2017 is allowed in the following terms:-

(a) The Applicant’s Memorandum of Appeal dated 5th May, 2017 and filed on even date is deemed as duly filed.

(b) The Applicant to serve the Respondent with the filed Memorandum of Appeal within the next 14 days from the date hereof.

(c) The costs of the Application shall be in the cause.

Dated and delivered at Machakos this 5th  day of December,  2017.

D. K. KEMEI

JUDGE

Muema for Mutua for the appellant

No appearance for Itonga

Kituva – Court Assistant