Kisavi Mutuku v Abdulkadir Hassan Juma

instructions as appertains the appeal herein. That it is only fair and just that the application be allowed as it is brought in good faith. 4. Abdul Kadir Hassan Juma (“the respondent”) filed a replying affidavit sworn on 7/11/2024 by his Counsel Crispin N, Ngugi, Advocate in opposing the application. The affidavit contented that this application is totally misconceived, unmerited, hopelessly frivolous and vexatious and is just but a mere tactic by the applicant to delay the day of reckoning and thereby deny the respondent the fruits of his judgment. From the outset, it was important to note that while the motion herein was filed on 12th January 2024, the same was not served upon the Respondent until when they served their motion dated 26th June 2024 seeking to strike out this appeal. It was only after the respondent served the appellant's advocates with their motion on 22nd July 2024 that they got wind of the appellant's motion when he served them with his replying affidavit on 23rd September 2024 which attached only page 1 of his motion. 5. That the applicant’s replying affidavit was served upon the Respondent two days before the scheduled court attendance of 25th September 2024 which was the date when the respondent's motion seeking to strike out this appeal was coming up for hearing and in an attempt to mislead the court, the appellant claimed that it was his motion that had been listed for hearing on 25th September 2024. Accordingly, no basis or sufficient/good reason has been demonstrated for grant of leave to appeal out of time as was demonstrated by the respondent that the lower court ruling was delivered 10/5/2023 while the appeal herein was lodged on the 19/6/2023 clearly out of time. 6. While knowing very well that his appeal herein was incompetent and in a blatant abuse of the process of this court, the applicant simultaneously with the Memorandum of Appeal also lodged an application seeking stay of execution pending appeal which motion was dismissed on the 16/10/2023 as this court rightly found that there was no proper appeal before it. 7. Three months later, the instant motion was filed and in his affidavit in support, the applicant claimed that after the ruling of the lower court, he got sick and that since the month of June 2023, he was in and out of hospital and thus unable to give instructions to his advocates. In the most conniving manner, the applicant attached a medical report from Ngundu Health Centre which claimed that the applicant was seen as an outpatient on 25th May 2024, put on oral medication for 10 days and went back for review on the 15th September 2024. Upon scrutinising the report, the respondent noted that the date of his alleged visit to the health centre looked suspiciously altered whereupon they sought for elucidation from the health centre vide their letter dated 11th October 2024 while attaching the applicant's said report. 8. Upon presentation of the Respondent’s said letter to the health centre, the staff noted with bewilderment that the date of visit in the medical report had been tampered with and forged to create the notion that the applicant was seen at the said facility on 25th May 2023 when in actual fact, he was seen at the facility on 28th August 2024 two months after the filing of this incompetent appeal. 9. It is therefore apparent that the said medical report was deliberately and maliciously forged to deceive the court into believing the applicant's false claim that after the ruling of the lower court on 10th May 2023, he fell ill and could not give instructions on the filing of the appeal within time. There is therefore no evidence before the court to the effect that the applicant was unwell within the prescribed 30 days period for appeal. 10. What is more disturbing is that the applicant who is said to be a man of cloth has been so contemptuous of this court as to present before it unparalleled falsehoods and a deceptive document laced with crystallized stinking malafides citing an act of God which conduct is an insult to this court's intelligence and authority and militates against the exercise of discretion in his favour. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14360/eng@2025-02-04 2

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11. The act of forgery is a criminal offence and the Respondent verily believe that the said health centre shall take appropriate action against the applicant and/or his advocates. 12. The applicant’s further claim that his advocates were prevented from filing the appeal on time due to failure of the judiciary's E-filing system is both baseless and dishonest as it is not demonstrated that there was any issue with this court's E-filing system then. Thus, this court cannot exercise its discretion to grant leave as a matter of course but must be guided by material laid before it justifying the delay in filing the appeal on time and there is none in this application. 13. No cause has been demonstrated for failure to lodge the appeal within time and the application has been filed belatedly. Besides, there is no arguable appeal before the court as the lower court correctly found that it was not the role of the respondent (the decree holder) to ensure that the applicant's insurance company honoured its obligations but that it was the applicant's sole duty to pursue his insurer. 14. Indeed, there can be no doubt that this application is an indelible afterthought and has all the hallmarks of an abuse of this court's process thus commending itself for dismissal without much ado. 15. Certainly, the respondent shall suffer great prejudice if the application is granted as he shall unjustifiably be kept away from the fruits of his judgment entered in the year 2020. It is trite law that the administration of justice demands that litigation should come to an end and the intended appeal will merely clog this court with unnecessary litigation. The respondent attached the lower court's decree. 16. The second application on record is by ABDUL KADIR JUMA (“the applicant”) through the firm of C. N. Ngugi & Associates Advocates by way of notice of motion dated 26th June 2024. The application is premised on Section 1A, 1B, 3A and 79G of the Civil Procedure Act Cap 21 of the Laws of Kenya. The applicant principally seeks for an order that the appeal herein to be strike out with costs. 17. The grounds in support of the application are set out on the face of the application and in a supporting affidavit sworn by Crispin N. Ngugi, an advocate from the law firm representing the applicant. It is stated that the decision appealed against was rendered on 10/5/2023 while the Memorandum of Appeal was filed on 19/6/2023 out of time and without leave. Consequently, there is no competent appeal before this court and its pendency continues to cause the respondent unnecessary prejudice, expense and anxiety besides adding to the backlog of cases in the judiciary. That this court is enjoined to give effect to the overriding objective of the Civil Procedure Act which is to ensure a just, expeditious, proportionate and affordable resolution of civil disputes. The orders sought are fair and meet the totality of all material circumstances and it is only in the interests of justice and all fairness that the court grants the application. 18. In response to the second application, the respondent (applicant in 1st application above) filed a replying affidavit stating inter alia that after the dismissal of his application on 16/10/203, he filed an application on 12/01/2023 seeking leave to appeal out of time and claims that the applicant herein has not demonstrated that he will suffer any substantial loss and that his appeal has a probability of success. Analysis and determination 19. Parties were directed to file written submissions in argument of their respective applications. Both parties complied and their submissions are on the court file. 20. I have considered the two applications, the supporting affidavits, the Replying Affidavits, and the rival submissions filed by the parties’ counsel as well as the judicial decisions relied upon. It is clear that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14360/eng@2025-02-04 3

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respondent has not contested representation of the Applicant’s present advocates on record and have not made any submissions on the same. In my view, the issues for determination are as follows: a. Whether the court should exercise its discretion to grant the applicant leave to file her appeal out of time; b. Whether the appeal should be struck out; a. Whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time; 21. Section 79G of the Civil Procedure Act states: “ 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 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. 22. It is clear from the wording of Section 79G of the Civil Procedure Act that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018] eKLR that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so. 23. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:“ The underlying principles a court should consider in exercise of such discretion should include:a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e. Whether there will be any prejudice suffered by the respondent if the extension is granted; f. Whether the application has been brought without undue delay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14360/eng@2025-02-04 4

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24. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:“ …….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general, the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.” 25. Applying the above principles to the present case, the judgment appealed against was rendered on 10/5/2023 while the Memorandum of Appeal was filed on 19/6/2023 out of time and without leave. and the appeal ought to have been filed by 10/6/2023. The applicant filed the current application 11/1/2024 about six (6) months from when he filed Memorandum of Appeal. The applicant has attributed the delay in filing his appeal and the application for extension of time on illness and challenges in filing in the judiciary’s Case Tracking System. He claimed that he had been in and out of hospital since June 2023 and that his advocates the CTS was not working at the time his advocates wanted to file the Appeal. The applicant annexed a medical report from Ngundu Health Centre in purported proof of the same. The report indicated the applicant was seen at the said Health Centre on 25/5/2023. The report looked suspicious to the respondent who wrote to the Health Centre on the authenticity of the same. I have seen the reply letter from Ngundu Health Centre which was sent to the respondent’s advocates dated 22/10/2024 which I reproduced below: “ 22/10/2024 C.N. Ngugi & Associates PO Box 1262-00606 Sarit Centre, Nairobi Re: Authentification of the Report for Mr. Kisavi Mutuku Dated 10th January 2024 I refer to the above subject matter. The above-mentioned client was indeed sick and treated on our facility as an out-patient case on 28/08/2023 and came back for review on 15/9/2023 after completing the oral medications. The said medical report indeed originated from our facility the dates on the letter do not match the dates in our records which are as stated above. During the period of treatment, the patient was not so sick that would warrant admission thus was able to physically attend the court proceedings. Signed Mr. Jonyo Walter RCO 26. Clearly, the letter by the Health Centre confirms that the applicant was indeed sick and treated on the facility as an out-patient case on 28/08/2023 and came back for review on 15/9/2023 and even though https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14360/eng@2025-02-04 5

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the said medical report indeed originated from their facility the dates on the letter do not match the dates in their records which are as stated above. The report further confirmed that the applicant was not so sick that would warrant admission. 27. The applicant has also faulted the judiciary CTS for failure by his advocates to file the appeal. What the applicant does not tell this court is when exactly did the system fail. This allegation is not supported by any evidence. This court is aware and it is common practice that whenever the CTS encounters challenges, ordinarily notices and emails are sent to Parties notifying them of the same and where there are cases that require urgent attention alternative ways of dealing with the same are normally provided such physical presentation of the documents to court or through email. I don’t believe that the court would have remained silent for even two days if truly, there were any challenges with the CTS. 23. Considering the ten (10) days delay in filing of the Memorandum of Appeal cannot really be termed as an inordinate delay, I find that the delay of about six (6) months in filing the application for extension of time to appeal is inordinate delay that the applicant has not satisfactorily explained to this court as required by the law. In my view, the applicant has not given any plausible reasons for the delay in filing the application dated 12/1/2024. 24. I have perused the Memorandum of Appeal dated 9/6/2023 and the judgment of the trial court and noted that the appeal does not raise triable issue. The trial court correctly found that it was not the role of the respondent (the decree holder) to ensure that the applicant's insurance company honoured its obligations but that it was the applicant's sole duty to pursue his insurer. 25. on the foregoing, this court finds that the application dated 12/01/2024 is without merit and the same is dismissed. b. Whether the appeal should be struck out; 25. At the onset, I indicated that the outcome of one application could effectively determine the other. Having dismissed the application dated 12/1/2023 which basically sought time to file appeal out of time, it follows that the Memorandum of Appeal dated 9/6/2023 is not properly on record and can only be struck out. I will proceed to allow the second application dated 26/6/2024 and have the Memorandum of Appeal dated 9/6/2023 struck out. 26. In the end, I make the following orders: a. The Appellant’s Notice of Motion application dated 12/1/2024 is hereby dismissed. b. The Respondent’s Notice of Motion application dated 26/6/2024 is hereby allowed. c. The Respondent in this appeal will have the costs of both applications. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 4TH FEBRUARY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH FEBRUARY 2025 In the presence of : .......... for Appellant ........... for Respondent ............. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14360/eng@2025-02-04 6

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