FKM v HWK [2022] KEHC 13584 (KLR)

FKM v HWK (Miscellaneous Case E073 of 2022) [2022] KEHC 13584 (KLR) (Family) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13584 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Case E073 of 2022

AO Muchelule, J

October 6, 2022

Between

FKM

Applicant

and

HWK

Respondent

Ruling

1. The Supreme Court in Nicholas Kiptoo Korir Arap Salat v I.E.B.C & 7 Others [2014]eKLR held that extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party and at the discretion of the court. The party seeking extension of time has the burden of showing to the satisfaction of the court that he deserves the exercise of the discretion in his favour. The delay should not be inordinate and has to be explained to the satisfaction of the court. The court will consider whether extension will prejudice the other side, and whether the prejudice can be compensated by the payment of costs. Lastly, the application for extension has to be brought without undue delay.

2. F.K.M. (the applicant) and H.W.K. (the respondent) got married on June 7, 2001 at the [particulars withheld] at Huruma in Uasin Gishu County, having cohabited since 1989. In Divorce Case No. XXX of 2020 at Milimani Commercial Courts, the applicant sought the dissolution of the marriage on account of cruelty. The respondent filed an answer to the petition and cross-petitioned for divorce on grounds of bigamy and adultery and also sought alimony and maintenance of the two children of the marriage. The trial court heard the dispute and on February 25, 2022 returned a verdict that the petition had not been proved and dismissed it. It also dismissed the prayer for alimony and maintenance, and asked the parties to go for reconciliation this being a family dispute.

3. The applicant’s application for extension of time to file an appeal against the judgment was dated 12th November 2022. It was brought under Sections 3A, 75, 78 and 79 of the Civil Procedure Act. His case was that he did not file the appeal on time because of the delay in getting copies of proceedings and judgment. They were not availed until March 30, 2022.

4. The respondent opposed the application on the ground that the applicant had not demonstrated that the proceedings and judgment were only made available on March 30, 2022, and had not shown sufficient cause for the application to be allowed.

5. Together with the application was the proposed Memorandum of Appeal whose main ground was that the lower court had erred in dismissing the petition when there was evidence of irretrievable breakdown of the marriage, the parties having lived apart for 20 years and the respondent having also cross-petitioned for its dissolution.

6. I have read the application, response and the written submissions. The appeal ought to have been filed within 30 days from the date of judgment, and therefore the delay was for 17 days. The delay was not for a long time. The explanation for the delay was plausible, although an appeal ought to have been filed on time with possible amendment to the Memorandum of Appeal being sought thereafter. I also consider that it has not been shown that there will be prejudice to the respondent if the application is allowed.

7. Consequently, I allow the application with costs to the respondent. I order that the appeal be filed and served within 14 days.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 6TH DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE