Pius Kilili t/a Baraka Mixed Day & Boarding Academy v Josephine Mbenzi Mwaura & Zacharia Mairura [2017] KEHC 3037 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

CIVIL APPEAL NO. 46 OF 2016

PIUS KILILI T/A BARAKA

MIXED DAY & BOARDING ACADEMY.....APPELLANT/APPLICANT

VERSUS

1. JOSEPHINE MBENZI MWAURA

2. ZACHARIA MAIRURA............................................RESPONDENTS

RULING OF THE COURT

1. Before this court is the applicant’s notice of motion application dated 24th October, 2016. The applicant seeks the following orders:

a) That the time for filing the appeal against the judgment of Hon. E. Muiru (Miss) delivered on 2nd March, 2016 be enlarged and or be extended.

b) That the applicant be granted leave to file his appeal out of time.

c) That the memorandum of appeal filed on 19th May, 2016 be deemed as properly filed and filed within time.

d) That there be a stay of execution pending the hearing of the appeal.

e) That the costs of this application do abide in the appeal.

2. The application herein was dispensed with by way of written submissions. The motion is supported by the applicant’s affidavit and the grounds on the body of the motion. The reasons advanced by the applicant for the delay in filing this appeal are that; he was represented by a different advocate during trial which advocate did not have instruction to appeal and that his mother and daughter were hospitalized during the period within which he was meant to file the appeal.

3. It was the applicant’s submissions that the orders for extension of time to file an appeal out of time are discretionary. That in determining such an application the factors the court considers are whether justice shall be met by allowing or declining to award the orders; whether the appeal has chances of success and whether the reasons for delay are satisfactory. Citing Nathan Washiko Fedha v. Edwin E. Asava Majani Nairobi High Court Civil Application No. 322 of 2003 and Kenya Canners Ltd v. Titus Muiruri Doge, Nairobi High Court Civil Application No. 119 of 1996 it was submitted that the courts in the said cases held that the courts’ discretion of extending time is unfettered and should be exercised judicially. It was contended that the trial court had no jurisdiction to entertain the matter since it was a rent arrears between the applicant and respondents. That the proper place for the dispute was business premises rent tribunal. It was further argued that the trial court also failed to consider the applicant’s counter-claim thereby the appeal has arguable grounds. The applicant urged that the application be allowed in the spirit of Article 159 (1) of the Constitution in order to achieve justice for both parties.

4. In response thereto, Evans M. Mochama who is the advocate in conduct of the matter on behalf of the respondents swore an affidavit on 13th January, 2017. He contended that the intended appeal has no arguable issues is unmeritorious and has no chances of success. That no reasonable or sufficient reasons have been disclosed for the delay. That the issue of jurisdiction cannot be raised at appeal stage yet it had been admitted in the defence at trial.

5. The respondents’ arguments were that the judgement sought to be appealed against was delivered on 2nd March, 2016 while the purported appeal was filed on 25th October, 2016 that is six (6) months out of time. The respondents contended that the alleged sickness could by no means prevent the applicant from filing his appeal. That from the attached discharge summary of Rebecca Nyamai it is clear that she was admitted on 10th June, 2016 and discharged on 6th July, 2016 while Grace’s (aged 78 years) across the counter receipt indicates that the medication was dispensed on 10th June, 2010. That the appeal should have been filed on or before 1st April, 2016 thereby from the foregoing, the said sicknesses do not sufficiently explain the delay. The respondents urged for security in the event this court is inclined to grant the orders.

6. The guiding principles for extending time were discussed in the Supreme Court’s decision of the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others, SC, Appl. 16 of 2014 laid down principles that a court should consider while exercising discretion thus:

i. Extension of time is not a right of a party. It is an equitable remedy only available to a deserving party at the discretion of the court;

ii. The party who seeks for extension of time has be burden of laying a basis to the satisfaction of the court;

iii. As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case basis;

iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;

v. Whether there will be any prejudice to be suffered by the respondents if the extension is granted;

vi. The application should have been brought without undue delay; and

vii. In certain cases, like election petitions, public interest should be a consideration for extending time.

7. Section 79G of the Civil Procedure Act, CAP 21, provides as follows with regard to the time for filing of appeals:-

"Every appeal from a subordinate court to the High Court shall be filed within aperiod 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.”

8. It is clear from the foregoing that the discretion whether or not to give such orders is with the court. In accordance with section 79 G, which is the prescribed law, the applicant ought to have filed this appeal by 1st April, 2016 thus within 30 days from the date the judgment was delivered. The explanation by the applicant that his mother and daughter had been admitted in my view is not satisfactory explanation. I say so for the reason that the two were sick in the month of June, 2016 way after the time frame had lapsed. The question that follows is whether justice can still be done even with the said unsatisfactory reason. The applicant argued that he has an arguable appeal. It must be noted that an arguable appeal does not mean one that must succeed but one that it triable. Among the grounds raised in the appeal is that the trial court failed to consider the applicant’s counter-claim. In my opinion, this is an arguable issue that the applicant should not be barred from prosecuting it. If the applicant is so barred he stands to suffer loss.

9. The Applicant did not offer any security but shall be bound by this court's order as to security.In view of the foregoing, I am inclined to allow the application herein in the following terms:-

a) The Applicant is granted stay of execution of the judgment and decree Hon. E. Muiru (Miss) delivered on 2nd March, 2016.

b) The Applicant is granted fourteen (14) days leave from the date of this ruling to file the intended appeal out of time and that the memorandum of appeal annexed to this application be deemed as having been filed upon payment of the requisite fee.

c) The Applicant to deposit the decretal sum in an interest earning account in the joint names of the firms of advocates of the parties herein within the next 30 days from this date failure to which execution to issue.

d) Costs shall abide the outcome of the appeal.

Dated, Signed and delivered at Machakos this 6THday of October, 2017.

D.K. KEMEI

JUDGE

In the presence of:

No appearance for Muia for the Applicant

Mochama for the Respondent

C/A: Kituva