Mbuvi Nzoka v Njoki Kiema [2018] KEHC 2569 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

MISC. CIVIL CASE NO. 70 OF 2018

MBUVI NZOKA………..APPLICANT

VERSUS

NJOKI KIEMA …….RESPONDENT

R U L I N G

1. The Applicant Mbuvi Nzoka approached this court seeking leave to file an appeal out of time. The application is based on grounds that: the delay to rectify the situation is not inordinate; the applicant has a good appeal with overwhelming chance of success; the respondent will suffer no prejudice if the application was to be allowed while the applicant will suffer substantial loss if the application is denied and that it is in the wider interest of justice to enlarge time sought.

2. In an affidavit sworn by the applicant in support of the application he deposes that the judgment was delivered by Hon. Kibet Sambu on the 11thday ofJuly 2018 in the open court; he wrote a letter seeking copies of proceedings and judgment dated the21st day of July 2018, that the decision of the court to arrive at Kshs. 105,600/= is not accounted for, the application is brought in good faith as the delay in filing the appeal is not deliberate therefore excusable.

3. The application is unopposed.

4. The principle of enlarging time is enshrined in Section 79G of the Civil Procedure Act that provides thus:

“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”.

5. In Nicholas Kiptoo Arap Korir Salat –V- The Independent Electoral and Boundaries Commission & 7 others (2014) Eklrthe court stated that:

“ It is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the Applicant”.

6. The judgment was delivered on the 11th day of July 2018. On the 25th day of July 2018 the Applicant wrote a letter to court requesting for certified copies of the judgment and proceedings. It is not stated when the same was furnished but the fact that the request was made fourteen (14) days later  is evidence of some seriousness on the part of the applicant to follow up the matter. This is a case where the Respondent, though notified of the application did not file any response. That being the case there ‘s absolutely nothing to suggest that she will be prejudiced.

7. In the result, I grant the Applicant leave to file an appeal out of time within 14 days.

8. It is so ordered.

Dated, Signed and Delivered at Kitui this 4th day of October, 2018.

L.N. MUTENDE

JUDGE