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Civil Application No. E416 of 2023

The court document discusses an application to extend time for filing an appeal against a previous ruling. The applicants argue they had difficulty raising fees due to their age and economic hardships. However, the judge denies the request, finding the explanation for the 5-year delay unacceptable and that applicants should have sought to appeal as paupers if in financial distress.

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34 views6 pages

Civil Application No. E416 of 2023

The court document discusses an application to extend time for filing an appeal against a previous ruling. The applicants argue they had difficulty raising fees due to their age and economic hardships. However, the judge denies the request, finding the explanation for the 5-year delay unacceptable and that applicants should have sought to appeal as paupers if in financial distress.

Uploaded by

unclejimmydorset
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
You are on page 1/ 6

IN THE COURT OF APPEAL

AT NAIROBI

CORAM: KIAGE, JA (IN CHAMBERS)

CIVIL APPLICATION NO. E416 OF 2023

BETWEEN
JAMES MUIYA ……………..…..………...………….1ST APPLICANT
DANIEL MATHUNGWA …..…..…..………………..2ND APPLICANT
ISRAEL NZALLU …..…..…..………………………..3RD APPLICANT
RICHARD MASILA KAVEKE …..…..….…..……..4TH APPLICANT
PATRICK SOVE …..…..…..………………….….…..5TH APPLICANT
DAVID MWANTHI ……………..…..…………….…..6TH APPLICANT
DAVID KIOKO …..…..…..…………………….……..7TH APPLICANT
COSMAS MWOLOLO…..…..…..………………..…..8TH APPLICANT
WILSON MUTUNGA…..…..…..……………………...9TH APPLICANT
LAWRENCE MUTUNGA …..…..…..……………….10TH APPLICANT
JOSEPHAT KALANZO.…..…..…..………………...11TH APPLICANT
MASAKU TEACHERS INVESTMENT
LIMITED…………………………………………………12TH APPLICANT
AND
KWETU SAVINGS & CREDIT
CO-OPERATIVE SOCIETY LIMITED
(formerly MASAKU TEACHERS
SAVINGS & CREDIT
CO-OPERATIVE SOCIETY LTD) …..……….…..…..RESPONDENT
(An application for extension of time to file an Appeal against the Ruling of the
High Court of Kenya at Machakos (Kemei, J.) dated 26th February, 2018

in

Misc. Civil Appln. No. 35 of 2015)


******************************

RULING

The applicants have filed a Notice of Motion dated 24th

August 2023, seeking, in the main, this order;


Page 1 of 6
“1. Time be extended for filing appeal against
ruling delivered by Justice D. K. Kemei on 26th
February 2018 in Machakos High Court
Miscellaneous Civil Application No. 35 of 2015
and the Court of Appeal Nairobi Civil Appeal
No. E653 of 2023 be deemed to have been filed
within time and to proceed for hearing and
determination on merit.”

The application is predicated on grounds on the face of the

motion and the affidavit of James Muiya, the 1st applicant

herein, and the Chairman of the 12th applicant. He deposes that

he swore the affidavit on his own behalf and that of his co-

applicants. It is averred that the notice of appeal against the

impugned ruling of 26th February 2018, was lodged within time

on 5th March 2018. The applicants claim that;

“h. By way of honest mistake and oversight on part of


the Applicants and given their advanced age as
they are all retired teachers aged over 70 years
old relying on meagre peasant farming earnings in
addition to the unreliable meagre pension which
we use to sustain ourselves we had difficulty in
raising instructions fees as we were adversely
affected by harsh economic conditions brought
about by covid court shutdown, covid economic
decline, political instability prior to and after
elections, maandamano work disruptions and
global inflation together with the need to file
response to the application by the respondents
which sought to vacate the applicant’s stay
orders.

i. The drought which had hit the country in year


2022 led to failing of applicants crops resulting in
famine in Ukambani area where the applicants
Page 2 of 6
come from and lack of money to defend the
respondent’s application whilst also filing
appeal.”

The applicants contend that the delay in lodging the appeal

was occasioned further by time taken by the court in preparing

certified copies of the ruling and proceedings which was from 12th

March 2018 to 23rd December 2019. Additionally, there was the

Covid-19 pandemic that necessitated the closure of all courts and

restriction of movements contributed to the delay.

In written submissions dated 23rd January 2024 and lodged

by Andrew Makundi & Co. Advocates, for the applicants, it is

reiterated that the delay in lodging the appeal is attributable to

the Covid-19 pandemic and difficulty in raising legal fees by the

applicants. Counsel assert that as per the grounds raised in the

memorandum of appeal, the appeal raises “triable issues.” They

outline the considerations that should guide the Court in

exercising its discretion with respect to extension of time, and

cite the Supreme Court decision in NICHOLAS KIPTOO ARAP

KORIR SALAT Vs. INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION & 7 OTHERS [2014]eKLR.

I have given this application with its supporting affidavit and

the applicants’ submissions due consideration. An application for

Page 3 of 6
extension of time under Rule 4 is a plea to a single Judge of this

Court to exercise his discretion so as to allow a party who has

run afoul the timelines imposed by the Rules to be able to file or

serve documents out of time. The discretion is a judicial one to be

judiciously exercised on the basis of principle, not capriciously.

In exercising my discretion, which is free and unfettered, I

shall be guided by the considerations set out by the Apex Court

in NICHOLAS KIPTOO ARAP KORIR SALAT (Supra) thus;

“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 a consideration for
extending time.”

Page 4 of 6
In the matter before me, the applicants urge that I extend

time for filing the appeal against the impugned ruling and deem

Civil Appeal No. E653 of 2023 as filed within time. The reasons

for the delay in lodging the appeal are proffered as that, the

applicants are aged retired teachers who had difficulties in

raising legal fees to instruct an advocate due to the harsh

economic conditions resulting from the Covid-19 pandemic and

other effects of the pandemic. The applicants further attribute

their alleged financial hardship to the drought that hit the

country in 2022 which ostensibly caused a decline in their crop

production. It is also submitted that the period utilised by the

court below in preparing certified copies of proceedings, that is

from 12th March 2018 to 23rd December 2019, a period of about

6541 days, contributed to the delay.

The applicants pleaded that the impugned ruling was

rendered on 26th February 2018 and soon thereafter, the notice of

appeal was lodged on 5th March 2018. However, subsequently,

the record of appeal was not filed as prescribed by the Rules of

this Court. Rule 84 commands that the record should be filed

within 60 days following the date when the notice of appeal was

lodged. I note that the motion herein is dated 24th August 2023,

Page 5 of 6
approximately 5 years since the notice of appeal was lodged. In

my considered view, that period of delay is inordinate. Even if

the period utilised by the court to prepare certified proceedings,

being 12th March 2018 to 23rd December 2019, is deducted, I still

consider the remaining period to be excessively long. Applying the

principles in NICHOLAS KIPTOO ARAP KORIR SALAT (supra), I

do not find the applicants’ explanation for the delay acceptable. If

indeed they were in such financial distress for a period of over 5

years that they could not afford to pay legal fees, they should

have applied to the Court to appeal as paupers in accordance

with Rule 120 of the Rules of this Court. Days are long gone

when parties merely raised the Covid flag as the ready scapegoat

for all their defaults as it became the new normal. Ultimately,

and without a tinge of sympathy, am not persuaded that I should

exercise my discretion in favour of the applicants.

I decline to grant the prayer to extend time. Accordingly, the

application is dismissed with costs.

Dated and delivered at Nairobi this 28th day of March, 2024.


P. O. KIAGE
………………………..…….
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
Signed
DEPUTY REGISTRAR
Page 6 of 6

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