Fsm (Suing as mother and next friend of Fk & Jmm) v Johnson Munywoki Mwangangi & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS COMMERCIAL AND TAX DIVISION CORAM: D. S. MAJANJA J. PETITION NO. 5 OF 2019 BETWEEN FSM (Suing as mother and next friend of FK & JMM)...................................PETITIONER AND JOHNSON MUNYWOKI MWANGANGI.......1ST RESPONDENT BANK OF AFRICA LIMTED...........................2ND RESPONDENT RULING The petitioner wishes to appeal against the judgment I delivered on 24 th January 2020 dismissing the petition. By the Notice of Motion dated 21st February 2020 she seeks an order for extension of time to lodge a Notice of Appeal under section 7 of the Appellate Jurisdiction Act (Chapter 9 of the Laws of Kenya) against the judgment. The 1st respondent has opposed on the ground that the delay has not been explained. I have considered the facts and submissions by counsel for the 1st respondent opposing the application and I find as follows: 1. The application for extension of time was filed on 21 st February 2020 after a previous application was filed on 5 th February 2020 was withdrawn. 2. The reason why counsel for the petitioner withdrew the application of 5 th February 2020 is that I drew his attention to the fact that it had not made under the correct provision of the law. 3. At the same time, I granted leave to the petitioner’s new advocates to come on record. This explains that why there was a delay in filing the application as the petitioner instructed a new advocate and he explained as much in the application. 4. The application dated 21st February 2020 was indeed allowed but the order set aside on application by the 1 st defendant by which time, the Notice of Appeal had been filed. Taking the totality of circumstances, I do not consider the delay in this matter inordinate or prejudicial to the respondents. The judgment raises constitutional issues from which there is a right of appeal and for the reasons given, I do not think the petitioner should be prevented from pursuing her right of appeal. Accordingly, the application dated 21st February 2020 is allowed and the Notice of Appeal lodged on 28 th February 2020 is deemed as duly filed and served. The costs shall abide by the intended appeal. DATED and DELIVERED at NAIROBI this 13th day of MARCH 2020.

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