Ndanu Jimmy Mauta & Sammy Nzuki Mauta (Suing as the administrators of the estate of Jimmy Mauta Sammy-Deceased) v Munyalo Marshall [2022] KEHC 2719 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 444 OF 2015

NDANU JIMMY MAUTA

SAMMY NZUKI MAUTA (Suing as the administrators of the estate of

JIMMYMAUTA SAMMY-Deceased) ..APPELLANTS/RESPONDENT

-VERSUS-

MUNYALO MARSHALL..........................RESPONDENT/APPLICANT

RULING

1. The respondent herein took out the motion dated 24th August2021 whereof he sought for the following orders:

i. THAT proceedings in Milimani Chief Magistrates case no. 5299 of 2011 be stayed pending the hearing and determination of this application.

ii. THAT the applicant be granted leave to file the Notice of appeal and the appeal out of time.

iii. THAT costs of this application be provided for.

2. The respondent filed the affidavit sworn by Mr. Dominic NjugunaMbigi in support of the motion.  The motion was served upon the appellants’ advocate but the same did not elicit any response therefore this court permitted the respondent/applicant to prosecute the application exparte.

3. When the motion came up for hearing the respondent’s/applicant’s learned advocate informed this court that the respondent was entirely relying on the grounds stated on the face of the motion and the facts deponed in the supporting affidavit.

4. It is the submission of the applicant/respondent that this courtdelivered its judgment in favour of the appellants on 10th July 2020 without the applicant’s knowledge and at the pick of the Covid 19 pandemic when most advocates were out of office.

5. It is the averment of Mr. Mbigi, learned advocate for therespondent/applicant that he only became aware of the delivery of judgment when he received an undated letter from the firm of Nzamba Kitonga and Co. Advocates.

6. It is further pointed out that by that time, the time to appeal hadlapsed.  The respondent/applicant stated that being dissatisfied with this court’s judgment, he intends to file an appeal to challenge the same if given leave to file the notice of appeal and the appeal out of time.

7. They argued that their appeal has high chances of success.  Therespondent/applicant further avers that unless he is granted leave to appeal out of time and an order for stay of proceedings in the lower court he stands to suffer substantial loss as the matter that had already been dismissed will proceed to be heard to the detriment of the applicant.  The respondent/applicant pledged to comply with this court’s directions on the issue of security for costs.

8. The main ground put forward in support of the motion is thatthis court delivered its judgment without giving notice to the respondent.  The respondent/applicant stated that he only came to be aware of delivery of judgment upon receiving an undated letter from the appellants’/respondents’’ advocate.

9. I have perused the record and it is clear that thiscourt delivered its judgment on 10th July 2020 virtually in the presence of representatives of the parties.  In fact, Miss Kamau, learned advocate, held brief for Mr. Mbigi learned advocate for the respondent.  It is therefore not true that judgment was delivered without the knowledge of the respondent.  It is therefore not true that the respondent became aware of the delivery of judgment upon receipt of a letter from the appellants’ advocates.

10. The respondent/applicant has failed to provide plausible reasonsto explain his failure to lodge a notice of appeal within the stipulated time.  I therefore find no merit in the respondent’s application dated 24th August 2021.  The same is dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 4TH DAY OF FEBRUARY, 2022.

………….…………….

J. K.  SERGON

JUDGE

In the presence of:

……………………………. for the Appellant

……………………………. for the Respondent