Sunday Publishers Ltd v Kenya National Highways Authority [2022] KEHC 9963 (KLR)

Sunday Publishers Ltd v Kenya National Highways Authority (Miscellaneous Application E290 of 2021) [2022] KEHC 9963 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 9963 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E290 of 2021

DO Chepkwony, J

June 17, 2022

Between

Sunday Publishers Ltd

Applicant

and

Kenya National Highways Authority

Respondent

Ruling

1. Vide a Notice of Motion Application dated 21st June, 2021, the Applicant is seeking for orders that;1)Spent;2)The Applicant/Intended Appellant be granted leave to appeal and to file and serve the Memorandum of Appeal against the Judgment of the court delivered on 16th April, 2021 in CMCC 8702 OF 2018 (Sunday Publishers Limited Vs Kenya National Highways Authority) out of time; and,3)Costs of this Application abide by the outcome of the Appeal.

2. This application is founded on the grounds that Judgment was delivered on 16th April, 2021 in presence the Applicant who on being aggrieved by the said Judgment, requested for the typed copy of Judgment for purposes of Appeal. The delay in bringing this Application has been blamed on the difficulty in obtaining a copy of the typed copy of Judgment for which the Applicant has made several requests for in the registry to no avail. It is stated in the Supporting Affidavit of Stephen Kipkorir Bundotich sworn on 21st June, 2021 that the Applicant wrote an email to court on 20th April, 2021 and a further one on 8th June, 2021 forwarding the letter dated 8th June, 2021, both requesting for the typed copy of Judgment. Further it is contended that the said copy of Judgment was finally availed to Applicants Advocate on 20th June, 2021 after several emails and visits to the court’s registry at the time when the 30-day period for filing an appeal had already lapsed. Nevertheless, immediately the copy of Judgment was availed, the Applicant acted expeditiously in bringing the instant Application. It is further stated that the intended Appeal is arguable and it is the Applicant’s contention that the Respondent will suffer no prejudice if the Application is allowed.

3. Vide a Replying Affidavit sworn by Richard Kimutai Kilel on 21st September, 2021, the Respondent opposed the Application on the basis that the Applicant ought to have filed their Memorandum of Appeal within 30 days from the date of Judgment by virtue of the provisions of Section 79G of the Civil Procedure Act. Also, that it was the duty of the Applicant to ensure the typed copy of Judgment was provided to it in due time and as such it is guilty of laches since the Respondent was availed the said copy of Judgment on 21st May, 2021. It is contended that considerable time has passed with no reasonable explanation to justify the inexcusable delay hence the Applicant is not entitled to the orders sought which can only be granted to a deserving party and not as of right. It is further contended that no arguable grounds in the Appeal have been demonstrated hence the Application should be dismissed with costs in the interest of justice.

Analysis and Determination 4. I have considered the Application, the affidavits for and against it together with the rival submissions filed by the respective parties alongside their cited case and statute law. The issues for determination that arises therefrom is whether the Applicant has made a case to warrant grant of leave to file an appeal out of time.

5. An application for leave to appeal out of time is basically about enlargement of time to file an appeal. The principles applicable in this regard were set out by the Supreme Court of Kenya in the Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR as 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; and7. Whether in certain cases, like election petitions, public interest should be consideration for extending time.”

6. The Judgment the subject matter of the Application was delivered on 16th April, 2021. I have perused through the annexures marked SKB-2 and SKB-3 and while I find that indeed there was a delay in bringing this Application and in filing the Memorandum of Appeal, I am satisfied that the same is bases on the failure by the court to provide the Applicant with typed copy of the Judgment in time. It is worth noting that the Respondent obtained the copy of typed Judgment but has not demonstrated to this court how it got the typed Judgment earlier than the Applicant.

7. The instant Application was filed on 22nd June, 2021, twelve days after the Applicant was availed copy of Judgment by the court. The court’s administrative delay cannot be visited on the Applicant who has shown that it wrote to the court within the right time.

8. With regard to such issues, the Court of Appeal in its decision in the case of Rodgers Abisait/aAbisai & Company Advocates –vs- Wachira Waruru & Another [2014] eKLR, observed that;“The party that has applied for such copies has no executive powers on the Court's Registry and thus while agitating the registry to act quickly and supply the copies, must in practice accept that the registry has its own system of work which it must honour….However, all said and done, without the copies of proceedings and Judgment, the party seeking to appeal cannot mount any successful appeal. In fact if it attempted to do so, the same appeal would not see the light of the day. It would be struck out as incompetent. It is therefore not idle that the respondent waited, all for too long, for the copies of the proceedings and Judgment they sought….”

9. It is therefore clear that what happened was beyond the Applicant’s power and cannot be used against it. As such, I find the delay excusable and allow the Applicant’s application dated 21st June, 2021 with the following directions;a)The Applicant be and is hereby granted leave to appeal out of time.b)The Applicant to file and serve a Memorandum of Appeal together with the Record of Appeal within 60 days from the date of this Ruling.c)No orders as to costs.d)Mention on 19th September, 2022 for parties to confirm compliance and take directions with regard to hearing of the Appeal.It is hereby ordered

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17TH DAY OF JUNE, 2022D. O. CHEPKWONYJUDGEM/S Obiri counsel holding brief for Mr. Bundotich counsel for Plaintiff/ApplicantNo appearance for RespondentCourt Assistant - Kevin