Mungai v Waigi & another [2022] KEHC 12368 (KLR)

Mungai v Waigi & another (Miscellaneous Application 230 of 2019) [2022] KEHC 12368 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12368 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application 230 of 2019

RB Ngetich, J

July 21, 2022

Between

Ruth N. Mungai

Applicant

and

Margaret N. Waigi

1st Respondent

George K. Waigi

2nd Respondent

Ruling

1. This a ruling on amended Notice of Motion filed on 9th May 2022 seeking the following orders:a.Seeking leave to appeal out of time against the ruling and any consequential orders of the Hon. E Olwande in Limuru SPMS Succ Cause no. 15 of 2011 delivered on 7th February 2019. b.The court be pleased to allow the annexed draft amended Memorandum of Appeal to be deemed as duly filed upon the assessment of the requisite fees within the time the court deems appropriate.c.Costs of the application in the cause.

2. The application is premised on the grounds that the delay in filing the appeal was occasioned by the delay in obtaining the lower court proceedings and ruling; the delay of filing the appeal was not deliberate, the appeal has a high chance of success and it is in the interest of justice that the appeal is heard on merit.

3. The application is supported by the annexed affidavit of Ruth Njoki Mungai. She averred that she is aggrieved by the ruling delivered on 7th February 2019 by the SPMC at Limuru and intends to appeal. She requested a copy of the typed proceeding and ruling on 25th February 2019. She obtained a typed ruling and a certificate of delay. The delay in filing the appeal is not deliberate but beyond her control.

4. Despite being served with the application, the respondents did not file any response. The applicant did not file written submissions.

Analysis and Determination 5. I have considered grounds of the application and averments herein and wish to consider whether the applicant has demonstrated sufficient reason for delay in filing the appeal.

6. An appeal from the subordinate court to the High Court is provided for under Section 75G of the Civil Procedure Act provides as follows:-“79G. 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. From the record, judgment in the lower court was delivered on 7th February 2019 while the current application was filed on 9th May 2022, which is beyond the 30 days period as provided above. The applicant explained that there was delay in obtaining the typed proceedings and the ruling which resulted in delay in filing appeal.

8. The delay is for more than 3 years and 2 months. In Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecution & 3 Others [2015]eKLR, the Court of Appeal articulated that:“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are want to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.”

9. I take note of the fact that the applicant was unrepresented in the lower court. She cited delay in obtaing proceedings and ignorant in respect to timelines for appeal. I note that certificate for delay in supplying proceedings was filed. I do take further notice that between 16th March 2020 to around 2021 there was a downscaling of court services owing to the Covid -19 pandemic. A period which has contributed to the delay.

10. I do further note the respondent though served, has not filed any response. I will not look at the merit of appeal at this stage.

11. Looking at totality of all the circumstances, I am inclined to grant the applicant an opportunity to ventilate her grievances by way of an appeal. From the foregoing,I do allow the prayer for leave to file an appeal out of time.

12. Final Orders:-1)Applicant is hereby allowed to file appeal out of time.2)Appeal to be filed within 14 days from the date of this ruling.3)No orders as to costs.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 21ST DAY OF JULY, 2022. ............................RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court ClerkMr. Kingara for ApplicantGeorge K. Ananja for Respodent