Mwai Kibaki Foundation v Wanjiru & another (Suing as Personal Representatives of David Kihungu Murugi)

for the accident. The estate of the deceased was awarded general damages of Kshs. 1,710,000/= and special damages of Kshs. 64,700/=. 3. The appellant was dissatised with the decision of the trial court and preferred an appeal, to wit, Civil Appeal No. 97 of 2018. The High Court (Sergon, J.) vide a judgment dated 12th July 2019, agreed with the trial court’s nding on liability and on general damages. The award on special damages of Kshs. 64,700/= was set aside and substituted with an award of Kshs. 50,000/=. 4. Dissatised with the decision of the High Court, the appellant led a notice of appeal dated 22nd July 2019, evincing its intention to appeal against the entire decision. Thereafter the appellant sought stay of execution of the High Court judgment. This Court (Warsame, Makhandia & Odek, JJ.A.) vide orders made on 10th December 2019 directed as follows: by consent there shall be stay of execution of the judgment and decree dated 12th July 2019 pending the hearing and determination of the intended appeal; the intended appeal be led and served within the next 90 days; thereafter the appeal be processed and listed for hearing on priority basis; the appellant to pay a sum of Kshs. 300,000/= to the respondent within the next 15 days; and the notice of motion dated 8th August 2019 be and is hereby dispensed with. 5. The gravamen of the application now before us, as evident from the adavit in support thereof sworn by Alice Wanjiru, is that the appellant failed to institute the intended appeal within the 90 days’ period as ordered by this Court. The period was said to have lapsed on or about 10th March 2020. As such, it is contended that no appeal lies before this Court, and the notice of appeal dated 22nd July 2019 should therefore be struck out. For the same reasons, we were urged to vacate and/or set aside the stay orders made on 10th December 2019 so as to allow the respondent enjoy the fruits of her judgment. 6. The application is opposed by the appellant through a replying adavit sworn by Judith Kibaki, one of its trustees. She depones that indeed the appellant/respondent led a notice of appeal dated 22nd July 2019 and requested for certied copies of the typed proceedings and judgment on 5th August 2019. On the timeline of 90 days within which the appellant was supposed to have led the appeal as directed by this Court, it is deponed that the period was supposed to lapse on 1st April 2020 and not on 10th March 2020 as contended by the respondent. According to the appellant, the period between 21st December 2019 and 13th January 2020 (both days inclusive) when this Court was on Christmas vacation ought not to be taken into account in computing time. 7. As to the reasons for the delay in ling the record of appeal, it is deponed that the High Court registry delayed in availing the certied copies of typed proceedings and judgment despite constant follow ups. Another reason advanced is the Covid-19 pandemic that was registered in the country on 13th March 2020, leading to closure of court stations as per the Government’s directive. It is contended that the typed proceedings were certied on 9th March 2020, whereas the judgment was certied on 30th June 2020 and a Certicate of Delay dated 27th July 2020 was issued by the Deputy Registrar of the High Court. 8. The appellant contends that it duly led the appeal, being Civil Appeal No. E239 of 2020, on 11th August 2020 and served it upon the respondent on the same date. As to whether it is intent on prosecuting its appeal, it contends that contrary to the assertions by the respondent, it is ready and willing to proceed with the appeal as evidenced through its written submissions dated 7th April 2021, which it led in compliance with the directions given by the Deputy Registrar of this Court on 23rd February 2021. It has also paid the Kshs.300,000 to the respondent as directed. 9. In sum, the appellant contends that it has fully complied with the provisions of rules 82 of the Court of Appeal Rules, 2010 and that an appeal to this Court lies and is properly on record; that the delay in https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1659/eng@2023-12-15 2

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ling the appeal was not deliberate and/or intentional but was occasioned by circumstances beyond its control; and that by allowing the instant application, this Court will be driving the appellant away from the seat of justice unheard, especially in light of it having complied with the directions given by the Deputy Registrar on the manner in which the appeal is to be disposed of. 10. Both parties have led their respective written submissions, which we have considered. At the hearing hereof, learned counsel Mrs. Githaiga appeared for the respondent while learned counsel Ms. Mburu appeared for the appellant. 11. As per the Order of this Court dated 10th December 2019, the appellant was supposed to le and serve the record of appeal upon the respondent within 90 days of the said order. That period, according to the respondent, lapsed on or about 10th March 2020. However, the provisions of rule 3 of the Court of Appeal Rules, 2010 provides that the period of the Christmas vacation shall not be reckoned in the computation of time. Therefore, the period between 21st December 2019 and 13th January 2020, both days inclusive, is not to be reckoned in the computation of time. This brings us to 1st April 2020 when the appellant was supposed to have led and served its record of appeal, which evidently, it had not done. 12. Rule 82 of the Court’s Rules which relates to the institution of appeals provides as follows: “ 82 (1) Subject to rule 115, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged – a. a memorandum of appeal, in quadruplicate; b. the record of appeal, in quadruplicate; c. the prescribed fee; and d. security for the costs of the appeal: Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certied by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy. (2) An appellant shall not be entitled to rely on the proviso to subrule (1) unless his application for such copy was in writing and a copy of it was served upon the Respondent. (3) .....” https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1659/eng@2023-12-15 3

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13. The reason given by the appellant for not ling and serving the record of appeal within 90 days as ordered by this Court was the delay in the availing of certied copies of typed proceedings and judgment by the High Court. The appellant has annexed to the replying adavit of Judith Kibaki a copy of a letter dated 5th August 2019, that was addressed to the Deputy Registrar of the High Court requesting to be furnished with a certied copy of the judgment and proceedings for purpose of instituting an appeal. The request was made within 30 days of the date of the decision sought to be appealed from and therefore complies with the provisions of rule 82 of the rules of this Court. 14. The other reason advanced by the appellant for the delay in ling and serving the appeal is the Covid-19 pandemic. It is a matter of public notoriety that following the reporting of the rst case of Covid-19 in the country, court operations stopped and/or were scaled down altogether, pursuant to the directive issued by the government and the National Council for the Administration of Justice. This Court takes judicial notice that the Covid-19 pandemic altered the norm as regards the conduct of court and registry functions. Therefore, although the typed proceedings had been certied on 9th March 2020 and before the rst reported case of Covid-19 in the country, we are satised that the delay in obtaining a certied copy of the judgment was attributable to the Covid-19 pandemic. After certication of the judgment on 30th June 2020, the Deputy Registrar issued a Certicate of Delay dated 27th July 2020. Although the period taken to prepare the proceedings was computed by the Deputy Registrar of the High Court to be from 12th July 2019 to 9th March 2020, a total of 241 days, we are satised that for the aforementioned reasons, which were beyond the appellant’s control, the latter was not in a position to le and serve the record of appeal. 15. In sum, we are satised that the appellant has provided a plausible explanation for the delay in ling and service of the record of appeal. The delay was neither inordinate nor intentional. In any case, the record of appeal was led and served upon the respondent on 11th August 2020, close to a year before the ling of the application and after directions as to the ling of written submissions. 16. We believe that we have said enough to demonstrate that this application is unmerited. It is accordingly dismissed. The costs of the application shall be in the main appeal. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF DECEMBER 2023. D. K. MUSINGA (P) ………………………… JUDGE OF APPEAL ASIKE-MAKHANDIA ………………………… JUDGE OF APPEAL MUMBI NGUGI ………………………… JUDGE OF APPEA I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1659/eng@2023-12-15 4

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