EWK v Jubilee Insurance Company Limited & another (Civil Appeal (Application) E254 of 2024) [2024] KECA 1935 (KLR) (20 December 2024) (Ruling) Neutral citation: [2024] KECA 1935 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL (APPLICATION) E254 OF 2024 M NGUGI, JA DECEMBER 20, 2024 BETWEEN EWK ........................................................................................................... APPELLANT AND JUBILEE INSURANCE COMPANY LIMITED .......................... 1ST RESPONDENT DR. MAINA RUGA ...................................................................... 2ND RESPONDENT (Being an appeal against the judgment and decree of the High Court at Nairobi (Mulwa J.) dated 27th July 2023 in HCCC No. 875 of 2005) RULING 1. In the application dated 30th August 2024, the applicant, EWK, seeks leave to le the appeal out of time, and for the record of appeal led herein to be deemed as duly led and served. The application is brought under rule 4 and 42 of this Court’s Rules, 2022. It is based on the grounds set out on its face and is supported by an adavit sworn by the applicant on 29th August, 2024. 2. The applicant avers that she applied for proceedings and the same were supplied on 21st December 2023. She led the record of appeal, dated 5th April, 2024, 43 days late, and it was served on the respondents. She avers that the record of appeal was lodged out of time and that leave of this Court is mandatory after 30 days from the date of ling the notice of appeal. Further, that the delay is not inordinate and was not deliberate as the impugned decision was delivered when the court was on its Christmas vacation, hence the oversight. 3. The applicant has led submissions dated 12th November 2024. She states in these submissions that judgment in the matter was delivered on 27th July 2023 and a notice of appeal led on 9th August 2023. That she obtained the proceedings on 21st December 2023, and led a record of appeal dated 28th March https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1935/eng@2024-12-20 1
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2024 on 5th April 2024.She further submits that there was a delay in obtaining the proceedings which was occasioned by the registry. 4. The application is not opposed, 5. Rule 4 of this Court’s Rules vests in the Court discretion to extend time for the doing of any act prescribed under the Rules. In exercising such discretion, the Court is required to consider the period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, and the degree of prejudice likely to be suered by the respondent should the orders sought be granted- see Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Fakir Mohammed v Joseph Mugambi & 2 Other [2005] eKLR. 6. In this matter, the applicant avers that she received the typed proceedings on 21st December, 2023. She led a record of appeal on 5th April, 2024, 43 days later than she should have. The applicant attributes the delay in lling the record of appeal to the fact that she received the proceedings on 21st December 2023, during the Christmas holiday. The applicant has not, however, in her adavit, explained the delay of 43 days, save to say that it was an oversight. In her submissions, she blames the delay on the court registry. She led the present application, dated 30th August 2024, but does not explain the delay of four months in seeking extension of time. 7. The applicant submits that she led a notice of appeal dated 9th August 2023, so she ought to have led a record of appeal by 9th October 2023. It is not indicated when she applied for copies of proceedings. However, a perusal of the documents placed before the Court does not show that the applicant has obtained a certicate of delay to account for the delay in ling the record of appeal, which she acknowledges was for a period of 43 days. The present application is dated 30th August 2024, more than four months after the applicant led the record of appeal. 8. I have considered the application against the factors to be considered in an application for extension of time. The applicant has admitted to a delay of 43 days. In her adavit, she attributes this delay to the fact that the proceedings were received during the Christmas recess, and an oversight on the part of her advocates. The delay in this matter, of about one and a half months, is not, by any standard, inordinate. 9. The reason for the delay, even by the most charitable assessment, can only be described as shaky. The respondents have not opposed the application, so there’s no prejudice to them discernible from the documents before me. In the circumstances, bearing in mind the overriding need to do justice to the parties, I will exercise discretion in favour of the applicant. The application dated 30th August 2024 is accordingly allowed, but with no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. MUMBI NGUGI ........................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1935/eng@2024-12-20 2
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