Bidii Muimi & Boniface Kinuva Mutungu v Patricia Munanie Mutemi & Charles Kyalo (Suing on behalf of Oliver Ngomango (Deceased) [2018] KEHC 6719 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CIVIL MISC. APPLICATION NO. 4 OF 2017

BIDII MUIMI..............................................................................1ST APPLICANT

BONIFACE KINUVA MUTUNGU..........................................2ND APPLICANT

VERSUS

PATRICIA MUNANIE MUTEMI.........................................1ST RESPONDENT

CHARLES KYALO(Suing on behalf

of OLIVER NGOMANGO(Deceased).................................2ND RESPONDENT

R U L I N G

1. By a Notice of Motion dated the 15thday of February, 2017the Applicants who have described themselves as Appellants seek orders as follows:

(a) That this Honourable Court be pleased to grant the intended Appellant leave to file a Memorandum of Appeal as per the attached draft against the decision and Judgment of Honourable Kimtai dated the 16th August, 2016 and Record of Appeal out of time and/or that time for filing and serving the same be extended.

(b) That in the alternative leave to file a Memorandum of Appeal as per the attached filed Appeal to operate retrospectively to the said filed Appeal Number 34 of 2016.

2. The application is premised on grounds that the delay in filing of the Appeal was occasioned by the insurers, a factor that was beyond their control. That the Appeal has a high chance of succeeding as the General Damages awarded are inordinately high since the trial Court failed to take into account the pleadings and submissions; the Appeal No. 34 of 2016 was filed one (1) day after the statutory time under the mistaken opinion that the Public Holiday of 12th September, 2016accorded them more time and the Respondents shall suffer no prejudice if the order sought is granted. An affidavit in support of the application was deponed by Dorry Wamugo Advocatewho averred that after the Judgment was delivered on the 16thday of August, 2016they informed Britam General Insuranceabout the decision and the communication of the intention to appeal reached them on the 15th September, 2016. They filed the Appeal a day after the statutory time under a mistaken opinion that 12th September, 2016being Idd Ul Adhawould not be counted.

3. The Respondents filed Grounds of Opposition arguing that the application was an afterthought and unmeritorious.

4. The application was canvassed by way of written submissions that I have taken into consideration.

5. Time within which an Appeal should be filed in Civil Cases is provided for in Section 79Gof the Civil Procedure Actthat 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.”

6. The Supreme Court considered circumstances that should be looked at positively in exercising the discretion to extend time in the case of Nicholas Kiptoo arap Korir Salat vs. Independent Electoral and Boundaries Commission and 8 Others (2014) eKLRthus:

“– Whether there is reasonable reason

for delay.

- Whether there will be any prejudice suffered by the Respondents if the extension is granted.

- Whether the application is brought without undue delay.”

7. The Memorandum of Appeal in High Court Civil Appeal No. 34 of 2016was filed on the 19th September, 2016. The Judgment in the Lower Court was delivered on the 16th August, 2016. The explanation given is that there was a Public Holiday in the course of the month and it was believed that the days would be taken into consideration. This was indeed a plausible reason.

8. Looking at what transpired after the Appeal was filed, an application for stay of execution was also filed. The application was compromised by the consent of both parties. The Respondents were paid Kshs. 500,000/=.Parties herein were desirous to have the matter disposed of expeditiously. Therefore the Respondents will not suffer an injustice. In the circumstance it will be in the interest of justice to have the time enlarged. The application was filed immediately the error was pointed out. There was no delay in filing the same.

9. In the premises I allow the application by granting the leave sought. The Appeal No. 34 of 2016be and is hereby deemed to have been filed within time.

10. Costs shall abide the outcome of the Appeal.

11. It is so ordered.

Dated, Signed and Delivered at Kitui this 19th day of April, 2018.

L. N. MUTENDE

JUDGE