Avoga & another v Achar & another [2025] KEHC 8202 (KLR)

Avoga & another v Achar & another (Miscellaneous Application E024 of 2023) [2025] KEHC 8202 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 8202 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Miscellaneous Application E024 of 2023

CM Kariuki, J

April 3, 2025

Between

Alima Kang’azi Avoga

1st Appellant

Humprey Ndindi Onditi

2nd Appellant

and

Elia Orondo Achar

1st Respondent

Transmara Sugar Company Limited

2nd Respondent

Ruling

1. In Application dated 29/11/2023, sought leave to file appeal out of time and memorandum of appeal be deemed to be properly filed.

2. Parties canvassed the application via submissions. The background of the case was that a road traffic accident occurred on 29/10/2021 while motor vehicle KTCB 317M Hauling Trailer No ZE7228 hit the victim occasioning fatal injuries. The driver of the said motor vehicle accused for recklessly driving the same thus him and his employers were file as Defendant No 1 and No 2 respectively vide Kilgoris CMCC E012/2022.

3. After the suit was heard, the trial court rendered Judgment on Quantum as parties recorded consent on liability at a ratio of 80%: 20% in favour of the Plaintiff. On Quantum on the 13/9/2023, to the effect that; Loss of expectation of life Kshs 100,000/=

Pain and suffering Kshs 100,000/=

Special damages Kshs 326,830/=

Sub-Total Kshs 526,830/=

Less 20% concession Kshs 105,366/=

Balance Kshs 421,464/=

4. Thereafter by application filed on 15/12/2023, the Applicant sought leave to appeal out of time. Which was opposed via replying affidavit sworn on 09/02/2024 and applicant replied via affidavit sworn on 03/05/2024. The delay thus was 2 months or thereabout as appeal ought to have been lodged within 30 days of the Judgment. The reasons for delay were that on 13/10/2023 Applicant sought from the trial court via a letter to be supplied for proceedings and Judgment. The proceedings supply was delayed thus the delay of the filing of the appeal.

5. The Applicant’s submission is that the delay was not inordinate, and it is explained. On the Respondent side, the applicants slept on their rights as the application for proceedings was done after 30 days of the appeal thus were not diligent and indolent. Thus, the application is an abuse of the court process. In the Salat v IEBC Case, the court set principles to apply in determining application of the nature of the instant case.i.That extension sought should be only granted to the deserving party.ii.The applicant must lay basis to the satisfaction of the court.iii.Court’s discretion should be exercised on a case-to-case basis.iv.Where there is reasonable delay, same to be expressed to the satisfaction of the court.v.The prejudice to the respondent to be considered.vi.Whether the application was brought without undue delay.

6. The Applicant sought proceedings after 30 days of the Judgment thus Respondent submits that there was coordination. The delay is thus submitted to be reasonable. The Case cited are Madson Insurance Ltd v Desterian Inya Omari 2021 eKLR, Njoroge v Kimani/NAI App No E049/2022, and othersv Anindo 2013 eKLR. It is submitted that the Respondent will suffer prejudice on account of the delay in payment of the decretal amount.

7. The court has considered the argument advanced by the rival parties. While as the Applicant delay is a span of 2 months after lapse of 30 days in which appeal ought to have been filed, the same lapse of Applicant is not satisfactorily explained and whereas the delay by court was occasioned after time for filing appeal had lapsed.

8. The court notes that the period of two months is not an inordinate delay and can be compensated for by the costs. The right to appeal ought not to be hindered unnecessarily, especially when the delay is not inordinate, and the party makes explanation in the form and shape of what we find herein. The Applicant’s advocate may have slumbered for the period in the time stated, thus occasioning delay in issue set in. However, in the interest of justice it is fair to invoke provisions of Article 159 (2) (b) that substantial justice ought to prevail for the administration of justice.

9. The Respondent rights may be delayed in terms of the postponement of enjoyment of the fruit of his judgment, but the court can always mitigate. In Njoroge v Kimani 2022 KECA 1188 KLR the court held that” applicant must give full details and accurate account of the causes of delay. In the end the explanation must be reasonable nought to excuse the default”

10. Thus, by ordering payment of the payment of decretal amount during discussion of stay of execution application.

11. For the above reason, I am inclined to grant application and penalize applicants to pay Kshs 10,000/= as costs of the application. Thus, the court makes the orders: -I.Leave to appeal is granted and Memorandum of Appeal to be filed and served within 7 days.II.The Applicant shall pay the Respondent Kshs 10,000/= as costs of the application within 30 days in default. The application and appeal may have been filed to stand dismissed.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION THIS 3RD DAY OF APRI ., 2025. …………………………HON. CHARLES M. KARIUKIJUDGE