Jubilee Insurance Company Ltd v Walter Tondo Soita [2016] KEHC 4597 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISCELLENEOUS CASE NO. 7 OF 2016

JUBILEE INSURANCE COMPANY LTD…………………………………… PLAINTIFF

VERSUS

WALTER TONDO SOITA …………………………………….…………… DEFENDANT

RULING

The application before me is dated the 25th of February, 2016 filed pursuant to  Order  40 Rule 6 Order 50 Rule 6 of the Civil Procedure Rules 2010 Sections 3A and 79 (9) of the Civil Procedure Act.

Relevant now are prayers 3, 4, & 6 seeking for extension  of time  within which to file an appeal or in other  words leave to file an appeal  out of time, stay of execution and provision  for costs.

The application is  based  on the grounds that; the applicant intends to lodge an appeal against  the judgement of Bungoma CMCC No. 832 of 2010, the applicant informed  its counsel  vide an which email for some reason  was not received by counsel on the intention; that it is only on  24th of April, 2015  that both the applicant and counsel  realized that there was lapse in this  communication, delay is not inordinate, it is  excusable and the appeal has a high chance of success.

The application was opposed through grounds of opposition and a replying affidavit of the respondent; where the respondent shows how the applicant was lax in prosecuting the defence case in the lower court, including seeking several adjournments, not calling any witnesses and failing to file submissions.  It was further deposed that the appeal has no chance of succeeding; The applicant  is a man of straw; and has  not come to court with clean hands.

The appeal ought to have been filed on the 4th of January, 2016, the current application  was  filed on 25th of February, 2016. 1  month 20 days later the.  Explanation is  miscommunication between the applicant  and its counsel. I have  looked at the grounds of appeal and on the face of it the same raises issues that may be worth consideration  by the court.

I do not find the period of 1 month and  20 days in the circumstances to be inordinate, I also find   reasons given to be excusable.

The application  in terms of prayer  3 & 2  therefore succeeds on the following  terms

(a).       Appeal  be filed within the next 30 days subject  to (b)

(b).       The decretal amount be placed in an interest earning account in the names of current counsel on record for the parties within the next  30 days.

(c).       Costs in the application to the respondent in any event

Delivered and DatedatBungomathis 2nd day of June, 2016.

ALI-ARONI

JUDGE.