Kyania & another (Suing as Legal Representatives and Administrators of The Estate of the Late Dorcas Ngina Kyalo) v Nexus Logistics Limited & 2 others [2022] KEHC 11615 (KLR)

Kyania & another (Suing as Legal Representatives and Administrators of The Estate of the Late Dorcas Ngina Kyalo) v Nexus Logistics Limited & 2 others (Civil Appeal E76 of 2021) [2022] KEHC 11615 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11615 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E76 of 2021

TM Matheka, J

May 19, 2022

Between

Mathew Kioko Kyania

1st Applicant

Martin Kyalo

2nd Applicant

Suing as Legal Representatives and Administrators of The Estate of the Late Dorcas Ngina Kyalo

and

Nexus Logistics Limited

1st Respondent

Modern Coast Builders And Contractors Limited

2nd Respondent

Julius Kyalo Nzau

3rd Respondent

Ruling

1. By a motion dated 21st January 2022 brought under section 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, the Applicant seeks the following orders: -a.Spent.b.Thatthis Honourable Court be pleased to grant the leave and or extent/enlarge the time within which to enable the applicant to lodge an appeal against the judgment/decree of the Court in Molo CMCC No. 290 of 2017. c.That pursuant to the prayer (b) above the annexed memorandum of appeal filed on the 23rd July 2021 be regularized and deemed as properly and duly filed and subsequently served on the Respondents Advocates upon payment of requisite court fees.d.Thatcosts of this Application be in the Cause.

2. The Application is supported by the grounds on the face of the application and in the Supporting Affidavit of the applicants. The applicants sued the respondent in Molo PMCC Number 290 of 2017. The judgement was delivered on 21st June 2021. They were not able to get the typed judgement in good time to enable them file the appeal in good time. I have not seen any response from the 1st respondent and the 3rd respondent is not opposed to the application.

3. Mr. Muchela for the 2nd respondent swore an Affidavit in opposition on the 18th February 2022 stating that the applicant had not fulfilled the requirements for the exercise of the court’s discretion in his favour.

4. The applicant and the 2nd respondent filed rival Submissions.

5. I have considered the Submissions, the Authorities cited.

6. Section 79G of theCivil Procedure Rulesprovides for time for filing appeals from subordinate courts;“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.”

7. I am guided by what the Court in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, (Civil Application No. Nairobi 255 of 1997) (unreported), that :-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.

8. The delay herein is one (1) day, at most two (2) days. Judgment was delivered on the 21st June 2021. The thirty (30) days expired on the 21st July 2021. Where is the inordinate delay?

9. A perusal of the Memorandum of Appeal indicates an arguable appeal.

10. The opposition by the respondents is not merited.

11. The application is allowed.

12. The Memorandum of Appeal filed on 23rd July 2021 will be deemed as filed upon the payment of the requisite filing fees, in any case not later than fourteen (14) days from the date hereof, during which period in must also be served upon the respondents.

13. The appellant is to file and serve the Record of Appeal within thirty (30) days of the preceding order that is within 45 days hereof.

14. Costs to the respondents.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY 2022. MUMBUA T. MATHEKAJUDGECourt Assistant EdnaFor the appellantMorgan Omusundi Law Firm AdvocatesFor the 2nd respondent.M.W Muli & Co. Advocates,For the 2nd respondentM/S Murimi, Ndumia, Mbago & Muchela Advocates,For the 3rd respondentJ.M.Kimani & Co.Advocates,