Case ID:165601

Varinder Sur v Wali Mohamed Altaf Jiwa [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 95 of 2020

Parties:

Varinder Sur v Wali Mohamed Altaf Jiwa

Date Delivered:

27 Oct 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Varinder Sur v Wali Mohamed Altaf Jiwa [2020] eKLR

Court Division:

Civil

County:

Mombasa

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO. 95 OF 2020

DR. VARINDER SUR..............................................APPELLANT

VERSUS

WALI MOHAMED ALTAF JIWA.......................RESPONDENT

RULING

1. By an application dated

24

th

July, 2020

the Applicant,

Dr. Varinder Sur

seeks from the court Leave to file his Appeal out time challenging

Judgment

made on

5

th

June, 2020

and costs of application to be awarded.

2. The application is based on the grounds on its face and further supported

by an Affidavit and Further Affidavit both sworn by the Appellant/Applicant’s advocate

Josyline K. Kimaita

on

17

th

July, 2020

and

1

st

September, 2020

respectively. He averred that the matter had been listed for mention on

10

th

March, 2020

to take a Judgment date which was fixed for

8

th

June, 2020

. It is averred that the Judgment was not delivered as communicated owing to disruptions caused by the

Covid-19

pandemic and the Applicant’s advocate was not aware of any other date fixed by the Court until they were served with a letter from the Respondent’s advocates for computation of costs. It until then when the Applicant learned that the Judgment had been delivered.

3. In addition, the Appellant/Applicant’s advocate deponed that the instructions to appeal were given on

30

th

June, 2020

and immediately drafted a

Memorandum of Appeal

. According to the Applicant, the Respondent will not be prejudiced by the orders sought and the court should grant the same in the interest of Justice.

4. The Respondent opposed the application by filing a

Replying Affidavit

sworn by his advocate,

Hamid Mahmood Abdalla

. He deponed that the

Judgment

was delivered on

5

th

June, 2020

in the presence of the Applicant’s advocate. That after the delivery of the Judgment, the Respondent wrote to the Applicant vide a

letter

dated

8

th

June, 2020

and brought to the attention of the Appellant/Applicant’s advocate that the Judgment had been delivered on

5

th

June, 2020

.

5. It is contented that the Applicant had all the time to appeal within time until

5

th

July, 2020

but despite receiving the instructions to appeal on

30

th

June, 2020

, the

Memorandum of Appeal

was filed on

24

th

July, 2020

.

Mr. Hamid

further deponed that the Respondent on

14

th

July, 2020

made payments of the decretal sum but the same was

declined by the Appellant and the Cheque in respect thereof returned to

the Respondent.

6. In the

Further Affidavit

,

M/s Kimaita

, Counsel for the Appellant/

Applicant deponed that no

Notice

was given that the matter was coming up for

Judgment

on

5

th

June, 2020

and no Appeal would be filed within the stipulated period due to

Covid-19

disruptions. Further that all the efforts to file the

Memorandum of Appeal

electronically were futile hence the cause of the delay. Finally, it was averred that the

Memorandum of Appeal

is arguable and it is in the interest of justice that the application be allowed. Parties opted to rely on the pleadings as expressed in the paragraphs above and a date for Ruling set.

Analysis and Determination

7. I have considered the Appellant/Applicant’s application together with the

two Affidavits which were filed in support thereof. I have also looked the Respondent’s Affidavit filed in opposition to the application. The prayers sought in the instant application are fairly simple to apprehend and the sole issue for determination thereof is whether or not the Applicant has placed before the court material grounds to warrant the exercise of this court’s discretion in extending time within which the preferred appeal can be filed.

8. Based on the materials presented before this court, the court has not had

the opportunity to glance at the impugned Judgment since none of the parties attached a copy of the said Judgment in either of its pleadings. It is alleged that the

Impugned Judgment

was set to be delivered on

8

th

May, 2020

but on the said date the Judgment was not ready. However, the Judgment was delivered on

5

th

June, 2020

without any

Notice

to the parties. Consequence thereof, the Appellant/Applicant submitted that part of the delay was contributed by him not being aware that the Judgment had been delivered as well as the challenges brought about by

Covid-19

pandemic.

9. On the foregoing, it is not in dispute that the

Judgment

subject of the

Intended Appeal

was delivered on

5

th

June, 2020

while the

Memorandum of Appeal

was filed on

24

th

July, 2020

. The Defendant on the other hand alleged that the Appellant/Applicant was aware of the Judgment as early as on

8

th

June, 2020

by virtue of letters addressed to his advocate by the Defendant, informing them that the Judgment had been delivered. Further according to the Defendant, the allegation that the Appellant’s advocate was waiting for instructions to file the Appeal cannot lie because the Appellant’s advocate conceded that they were instructed by the Appellant to file the

Intended Appeal

on

30

th

June, 2020

within which the time for appeal had not lapsed.

10. It is a common ground that a preferred Appeal to the High Court ought to

be within days of the delivery of the impugned Judgment. It is also not in contention that the preferred Appeal herein ought to have been filed on or before the

5

th

July, 2020

the Judgment having been delivered on

5

th

June, 2020

. The

Memorandum of Appeal

having been on

24

th

July 2020

was thus filed

19 days late

. The delay by the applicant is attributed to the confusion that arose in the wake of the

COVID-19

pandemic which occasioned challenges. Such challenges related to the mode of delivery of the Rulings and Judgments by the respective courts, the restriction in movements into and out of Mombasa and the directives issued on

23

rd

June, 2020

by

Deputy Registrar Mombasa Law Court

following the closure of the Court on

“a 14 days quarantine period”

which affected the Appellant’s ability to file the

Intended Appeal

within the

30 days

envisaged under

Section 79G

of the

Civil Procedure Act

. The Applicant even annexed an email made to the court in an effort to file the instant application following the directives issued by the Deputy Registrar but regrettably, the email was not responded to.

11. In the circumstances, I find the delay of

19 days

in filing the

Intended

Appeal

not inordinate

vis-à-vis

the explanation given by the

Appellant/Applicant and accordingly allow the prayer for extension of time as sought.

It is so ordered.

DATED, SIGNED and DELIVERED at MOMBASA on this 27

th

day of October, 2020.

D. O CHEPKWONY

JUDGE

27/10/2020

In view of the declaration of measures restricting court operations due to the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Ruling has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.

D. O CHEPKWONY

JUDGE

27/10/2020