Mucece (Suing on behalf of the Estate of Mwamamba M’Mutuambugu) v Samwel & 3 others

3. The 1st and 4th respondents opposed the application vide a replying adavit sworn by Moat Kimathi Samwel, the 1st respondent on June 22, 2022. In the replying adavit, the 1st respondent has deposed inter alia, that the applicant has not demonstrated to the court why she should be allowed to appeal out of time and why she never appealed within the statutory limits instead of just claiming that the land belongs to her husband. 4. On September 26, 2022, the court granted the applicant leave to le a supplementary adavit and the same was to be led together with written submissions within 14 days, from that date, and the respondents were to le their submissions within 14 days of service by the applicant. The matter was xed for mention on November 15, 2022 to conrm compliance with the said directions and to x a date for ruling. However, by November 15, 2022, none of the parties had complied with the court’s directions given on September 26, 2022 and a ruling date was given. 5. I have considered the application, the adavit in support as well as the response. The issue for determination is whether the court should enlarge time to allow the applicant le her memorandum of appeal out of time. 6. The lower court delivered its ruling on December 15, 2021. The applicant ought to have led appeal within 30 days from that date. The application herein was led on May 23, 2022, which means that the applicant has a delay of about four (4) months, putting her outside the mundane of section 78G of the Civil Procedure Act which provides that-: “ An appeal from the subordinate court to the High Court shall be led within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order, Provided that an appeal may be admitted out of time if the appellant satised the court that he had good and sucient cause for not ling the appeal in time” 7. Section 95 of the same Act provides that-; “ where any period is xed for granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired.” 8. The relief sought is discretionary but the discretion must be exercised judiciously and upon dened principles of law, not capriciously or whimsically. Therefore, leave should only be granted when sucient cause has been shown by the applicant to the satisfaction of the court. 9. I have looked at the grounds relied on by the applicant together with the adavit in support of the application. The applicant has not given any reason for not ling appeal within the stipulated time. All that the applicant has done is to give the history of the matter and allege that she has an arguable appeal with high chances of success. Therefore no cause or sucient cause has been shown by the applicant. 10. The delay by the applicant of about 4 months from the day the 30 days expired to the ling of this application in my view is inordinate and it was incumbent upon the applicant to give an explanation for such delay. I nd that no good and sucient cause has been given by the applicant for not ling the appeal in time as required by the provisions of section 79G of the Civil Procedure Act. In the absence of any valid reason that has been oered by the applicant for the delay in ling an appeal, I am of the view that the applicant has not met the prerequisites given under Section 79G to warrant the court to exercise its judicial discretion in her favour. In this case, the applicant is merely inviting the court https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15659/eng@2023-02-22 2

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to exercise its judicial discretion in her favour and therefore was obliged to demonstrate that there was good cause for not ling the appeal in time. 11. In my view no satisfactory explanation, and indeed no explanation has been given for the delay from December 15, 2021 up to May 23, 2022, a period of about ve months. In the circumstances, and for the reasons I have given above, I nd that the application is without merit. The notice of motion dated May 23, 2022 is dismissed with costs to the respondents. 12. Orders accordingly. DATED, SIGNED AND DELIVERED AT MERU THIS 22ND DAY OF FEBRUARY, 2023. In presence of C A Kibagendi No appearance for applicant No appearance for respondent C K YANO ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15659/eng@2023-02-22 3

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