Edward Njagi Nkariama (suing as Legal Representative of the Estate of Fredrick Mutegi alias Manager (Deceased) v Blue Shield Insurance Company Ltd [2007] KECA 479 (KLR)

Section 79G governs the time for filing appeals from subordinate courts and its proviso permits admission of appeals out of time; it does not deal with ordinary leave to appeal. Because the application was expressly brought under that section, its invocation signalled the true nature of the application. The grounds and the supporting affidavit (paragraphs 5, 6, 7, 9 and 10) addressed delay and the cause for it, confirming this. The judge was alive to the omission and held it not fatal, since the motion is to be read with the affidavits and a drafting mistake cannot be visited on the applicant. Substantive justice demanded that course.

The learned judge was exercising discretionary powers under section 79G of the Civil Procedure Code and Order XLI Rule 4 of the Civil Procedure Rules. Interference is permitted only where the judge misdirected himself on law, misapprehended the facts, took into account matters he should not have, failed to take into account matters he should have, or where the decision was plainly wrong. The appellant did not establish any of these; the judge had expressly considered the omission of the words 'out of time' and reasoned it out, so the discretion was properly exercised.