Owaka Edwin Owiti v Christine Ashuma Etabale

was served upon the Appellant and the same was acknowledged. It cannot be said that there was a delay in getting a copy of judgment. 4. Further, after the Insurance company failed to settle the decretal sum, a declaratory suit was instituted against Direct Insurance Company and the suit was still pending as at the time of filing the Replying Affidavit. 5. Directions were taken that the application be disposed of by way of written submissions. Both parties complied by filing the rival submissions. Analysis and Determination 6. 7. I have considered the application, the Applicant’s submissions, authorities cited as well as the law and in my view, the following are the issues for determination; a. Whether the application is meritorious; b. What is the order as to costs? On the first issue, the application basically seeks for leave to file an appeal out of time. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. It provides as follows: “ Every appeal from a subordinate court to the High Court shall be filed 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 satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 8. The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion just like any other exercise of discretion by the court. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Thuita Mwangi V Kenya Airways Ltd [2003] eKLR. They include the following: i. The period of delay; ii. The reason for the delay; iii. The arguability of the appeal; iv. The degree of prejudice that will be suffered by the Respondent if the extension is granted; v. The importance of compliance with time limits to the particular litigation or issue; vi. The effect if any on the administration of justice or public interest if any involved. 9. On the period of delay, the Applicant in his application and supporting affidavit stated that judgment in the lower court was delivered on 23/5/2023. The appeal ought to have been filed within 30 days after delivery of judgment. This application was filed on 9/9/2023 which is almost 4 months after judgment was delivered. The Applicant states the proceedings from the court were delayed. 10. Further, after forwarding the same to the Insurance Company for settlement, the Insurance company delayed in giving instructions to file an appeal. There is also no Certificate of Delay issued by the court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16983/eng@2024-02-07 2

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11. On arguability of the appeal, the Appellant submits that the trial court failed to apply itself to the precedents and principles of law in awarding damages. It was stated that the damages awarded were inordinately high and excessive thus occasioning miscarriage of justice. The Appellant did not attach the judgment subject to this appeal. It therefore cannot be determined if the appeal is arguable or not. 12. I do agree with the Respondent that the intended appeal is an afterthought after the Declaratory suit was instituted against the Insurance Company, prompting the company to give late instructions for filing of this appeal. By granting the Appellant the orders being sought, it would amount to denying the Respondent the fruits of her judgment. I am therefore inclined to disallow this application. 13. On the issue of costs, the same follows the event. This is what section 27 of the Civil Procedure Act decrees. However, this court has discretion to either award or not award any costs. This was well enunciated by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR. The Appellant being unsuccessful, he shall bear the costs of the application. 14. Flowing from the foregoing, I proceed to make the following orders: a. The application dated 1/9/2023 lacks merit and is thereby dismissed. b. The costs of the application awarded to be Respondent. Orders accordingly DATED, SIGNED AND DELIVERED AT MOMBASA, THIS 7TH DAY OF FEBRUARY, 2024. ……………………………….. F. WANGARI JUDGE In the presence of: N/A by the Appellant N/A by the Respondent Barile, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16983/eng@2024-02-07 3

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