Standard Group Limited, Leonard Kulei & Hudsib Gumbihi v Agyei Shem Grant [2021] KEHC 9529 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 366 OF 2019

THE STANDARD GROUP LIMITED..............................................1ST APPLICANT

LEONARD KULEI.............................................................................2ND APPLICANT

HUDSIB GUMBIHI............................................................................3RD APPLICANT

VERSUS

AGYEI SHEM GRANT.......................................................................RESPONDENT

RULING

1. The application dated 6th November, 2019 seeks orders that the proposed Appellant be granted leave to file and serve its Record of Cross Appeal out of time and/or time for filing and serving the said Record of Cross Appeal be extended.

2. It is stated in the grounds and the affidavit in support of the application that the Applicant who is aggrieved by the Lower Court judgment instructed the firm of Ogwoke Ndege & Co. Advocates to lodge an Appeal against the judgment. That no Appeal was filed as the Advocate handling the matter was unwell and had proceeded to India for treatment and that there was a communication breakdown.  That the current firm of Advocates for the Applicant were instructed and they compiled and filed a Record of Cross-Appeal but the time within which to file the Appeal had lapsed.  It is further stated that the intended Appeal has high chances of success.

3. The application is opposed.  It is stated in the replying affidavit that the Lower Court judgment was delivered on 26th May, 2019 in the presence of the Applicant’s counsel.  That the Applicant’s current Advocate is irregularly on the record and that there is no draft Memorandum of Cross-Appeal on record.  That the delay herein is inordinate and has not been explained.

4. I have considered the application, the reply to the same and the submissions filed by the respective counsel for the parties.

5. On enlargement of time, the principles applicable were set out by the Supreme Court of Kenya in the Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLRas follows:

“This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion:

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

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

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

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

6. Whether the application has been brought without undue delay; and

7. Whether in certain cases, like election petitions, public interest should be consideration for extending time.”

6. The delay herein has been explained.  There is uncontroverted evidence that the Applicant’s Advocate fell sick.  The Record of the Cross-Appeal which incorporates the Memorandum of Cross-Appeal has been compiled and filed. This will ensure that there is no further delay in this matter. Without undue regard to technicalities of procedure, I allow the application.  The Record of Cross-Appeal to be served within 14 days from the date hereof.

Dated, signed and delivered in Nairobi this 28th day of Jan., 2021

B. THURANIRA JADEN

JUDGE