Hersi v Mudhoka [2022] KEHC 17273 (KLR)

Hersi v Mudhoka (Miscellaneous Application 72 of 2021) [2022] KEHC 17273 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 17273 (KLR)

Republic of Kenya

In the High Court at Malindi

Miscellaneous Application 72 of 2021

SM Githinji, J

June 9, 2022

Between

A.A. Hersi

Applicant

and

Mike Madheka Mudhoka

Respondent

Ruling

1. Before the court for determination is the Applicant’s Notice of Motion dated October 29, 2021 brought under Order 22 rule 22, Order 42 rule 6, Order 50 rule 6 and Order 51 rules 1 and 3 of the Civil Procedure Rules, 2010and section 1A, 1B, 3, 3A and 95 of the Civil Procedure Act. The Applicant sought the following orders:1. Spent

2. Spent

3. Spent

4. That this Honourable court be pleased to grant leave to the Applicant/intended appellant to appeal out of time against the judgment of Honourable N.C Adalo, Senior Resident Magistrate of May 4, 2021.

5. That the annexed memorandum of appeal be deemed to be properly on record.

6. That this honourable court be pleased to stay further execution and proceedings of the judgment done vide the decree and certificate of costs emanating from Mariakani CMCC No 104 of 2019 pending the hearing and determination of the intended appeal herein.

7. That this honourable court allow the applicant/intended appellant to furnish the court with security in the form of a bank guarantee from DTB Bank.

8. That the costs of this application abide the outcome of the intended appeal.

2. The application is premised on the grounds enumerated on the face of it and supported by the affidavit of Biasha Khalifa.

3. The facts leading to this application are that, on May 4, 2021, the honourable SRM Adalo entered judgment against the Applicant on liability and quantum, more precisely, the Applicant was found 100% liable and the Respondent awarded Kshs 600,000/- and Kshs 2,000/= general and special damages respectively. The Applicant now intends to file an appeal albeit beyond the statutory period required for filing such an appeal.

4. As expected, the Respondent opposed the application. He contested that the delay in filing the appeal is inordinate, inexcusable and unexplained and that this court should not therefore exercise its discretion in favour of the Applicant. He averred that the said bank guarantee is speculative and conditional hence not providing any security for the decretal sum. The Respondent averred that as per the draft memorandum of appeal, the intended appeal is only on quantum and in such circumstances, and if the court allows the application, then the Applicant be required to release half of the decretal sum to the Respondent and the other half be deposited in an interest earning account of both advocates; and be ordered to file the record of appeal within a specified time.

Applicant’s Submissions 5. Quoting sections 79G and 95 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules, 2010, the Applicant submitted that the power to enlarge time is discretionary. He submitted that in considering whether or not to extend time, the court must be guided by the principles in Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] eKLR and in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2015] eKLR.

6. That the delay being a fault of the advocates, the Applicant submitted that the court should not visit the insurer’s advocates’ mistake on the litigant. The delay, he explained was occasioned by a challenge of limited work staff in the advocates’ offices.

7. Relying on the cases of Joseph Juma Onditi v Jane Kisaka Mung’au [2018] eKLR and Gahir Engineering Works Limited v Rapid Kate Services & another [2015] eKLR the Applicant argued that a delay of 4 months considering the explanation given is excusable.

8. On the prayer for stay of execution pending appeal, the Applicant submitted that the intended appeal is arguable with high chances of success and that there is actual risk of the Respondent executing the decree. To the Applicant, the Respondent’s financial ability is not known and the decretal sum being a substantial sum, he may not be in a position to refund if the same is paid.

Respondent’s Submissions 9. The Respondent submitted that the jurisdiction to enlarge time for a party to file an appeal out of time is purely discretionary as it was expounded in the case of LSG Lufthansa Service Europa/Africa GmBH & another v Eliab Muturi Mwangi. That the case established the legal principles to be considered in such applications.

10. It is the Respondent’s submission that having failed to give any satisfactory explanation for the inordinate delay of 6 months to file an appeal, this court should not exercise discretion in its favour. He relied on the case of County Executive of Kisumu v County Government of Kisumu & 8 others Civil Application No 3 of 2016 [2017] eKLR.

Analysis and Determination 11. I have considered the application and the prayers sought, for leave to appeal out of the statutory stipulated period and secondly, stay of execution of decree of the lower court pending the lodging, hearing and determination of the intended appeal. The main issue for determination therefore is whether the application has merit.

12. The statutory provision in respect to filing an appeal from the judgment or decree of a subordinate court to the High Court is section 75G of the Civil Procedure Act which 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.”

13. It is trite therefore that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. It is also settled that extension of time is a discretion of the Court, discretion which is unfettered. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others[2014] eKLR settled the principles that are to guide a Court in the exercise of its discretion to extend time as follows:“the under-lying principles that a Court should consider in exercise of such discretion: 1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents if the extension is granted;

6. Whether the application has been brought without undue delay; and

7. And in certain cases, like election petitions, public interest should be a consideration for extending time.”

14. It is not disputed that the judgment in the lower court was delivered on May 4, 2021 and that this application was filed on November 1, 2021 which was beyond the 30 days stipulated in section 79G of the Civil Procedure Act. The Applicant’s counsel gave an explanation that the delay was occasioned by lack of enough work staff in their offices. This, in my view is not explanation sufficient enough to warrant this Court to exercise it’s discretion in favour of the Applicant. The Applicant’s advocates wants this Court to take judicial notice of a fact that their firm was undergoing restructuring. I do not find sound basis for this argument; A delay of about seven months is too long and in this case the same having not been sufficiently explained, I do find the application in want of merit.

15. Given the foregoing, I find no need to delve into any further issues. The Notice of Motion dated October 29, 2021 is therefore dismissed with costs to the Respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 9TH DAY OF JUNE, 2022. ...................................S.M. GITHINJIJUDGEIn the presence of; -1. Mr Mirembe holding brief for Mr Khalifa Advocate for the Applicant2. Mr Njoroge advocates for the Respondent(absent)