Case ID:175710

Paul Kiriga Mwanganyi v Kenya Wildlife Service & another [2021] eKLR

Case Metadata

Case Number:

Civil Appeal 120 of 2020

Parties:

Paul Kiriga Mwanganyi v Kenya Wildlife Service & Isaac Alio Happi

Date Delivered:

06 May 2021

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Paul Kiriga Mwanganyi v Kenya Wildlife Service & another [2021] eKLR

Court Division:

Civil

County:

Mombasa

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. 120 OF 2020

PAUL KIRIGA MWANGANYI……………….….APPELLANT/APPLICANT

VERSUS

1. KENYA WILDLIFE SERVICE)

2. ISAAC ALIO HAPPI)……………...…….............……..….RESPONDENTS

RULING

1. Before me is a

Notice of Motion

application dated

30

th

September, 2020

brought pursuant to

Section 79G

of the

Civil Procedure Act Cap 21

and

Order 51 Rule 1

of the

Civil Procedure Rules

Laws of Kenya

and all other enabling provisions of the Law. In the Application, the Applicant prays for the following orders: -

1)

THAT

the Appeal herein be admitted out of time and the Memorandum of Appeal filed on 27

th

August, 2020 be deemed to be properly on record.

2)

THAT

costs be in the cause.

2. The grounds upon which the application is premised are on the face of the application and further expounded in the

Supporting Affidavit

sworn by

Kioko Maundu,

the Appellant/Applicant’s Counsel, on the

30

th

September, 2020

. He deponed that the

Judgment

in

CMCC Civil Case No.1899 of 1998

was to be delivered on

26

th

March, 2020

but due to the Covid-19 Pandemic, physical courts had been shut down on

16

th

March, 2020

. He stated that he wrote to the trial court and parties agreed that the Judgment be delivered via email.

3. The Appellant/Applicant’s Counsel further deponed that they never received the Judgment as agreed, but instead discovered the same was delivered upon receiving payment from the Respondents on

17

th

August, 2020

. It was stated that when Counsel obtained a copy of Judgment from the registry, he noted that the award was inordinately low. Further, Counsel deponed that when he later checked his email and he found the Judgment had been sent by the court.

4. The 1

st

Respondents opposed the application dated

30

th

September, 2020

by filing a

Replying Affidavit

sworn by

Counsel Priscah Obura

on

3

rd

November, 2020

. She agrees that indeed

Judgment

in

CMCC Civil Case No.1899 of 1998

was to be delivered on

26

th

November, 2020

but the same was not delivered as courts were closed due to the Covid-19 pandemic.

5. The 1

st

Respondent’s Counsel deponed that sometime in early

May, 2020

a

notice

was sent to Counsels of both parties notifying them that the

Judgment

in

CMCC Civil Case No.1899 of 1998

would be delivered on

13

th

May, 2020

.

6. That the Applicant’s Counsel (

Mr. Kioko Maundu

), sent an email to the trial Court on

11

th

May, 2020

indicating that they were agreeable to a 30 days stay of execution being granted to the 1

st

Respondent if the Judgment was in their favour.

7. The 1

st

Respondent on

12

th

May, 2020

also sent an email to the trial court confirming the Applicant’s position, that if the Judgment was to be in the Applicant’s favour, the 1

st

Respondent be granted a 30 days stay of execution.

8. It was the 1

st

Respondent’s averment that on

13

th

May, 2020

via email/address for both parties herein, the trial court sent the Judgment awarding the Applicants

Kshs.51,600/=.

9. On

17

th

August, 2020

, the 1

st

Respondent forwarded the decretal amount

Kshs.51,600/=

via cheque to the Applicant’s Counsel as full and final settlement as was ordered by court.

10. The 1

st

Respondent deponed that the application herein has not been made timeously and no sufficient reason has been given by the Applicant for failure to file their Appeal on time.

11. Parties were directed to dispose of the Application dated

30

th

September, 2020

by way of written submissions and the record reflects that both parties have complied. All parties indicated that they would rely on the said written submissions. The Appellant/Applicant filed submission on

18

th

March, 2021

while the Appellant filed submissions on the

14

th

January, 2021

.

12. I have had the benefit of reading the written submissions. They replicate much on the grounds in support and opposition of the application as captured above that I need not to duplicate the same herein.

ANALYSIS AND DETERMINATION

13. I have considered the

Notice of Motion

application dated

30

th

September, 2020

, the affidavits in support and objection thereof, the written submissions, the law and judicial authorities cited therein. This court finds that the only issue that arises for determination, is whether the Appeal herein can be admitted out of time and the

Memorandum of Appeal

filed

27

th

August, 2020

be deemed to be properly on record.

14.

Section 79G

of the

Civil Procedure Act

provides that:

“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.”

15. For an applicant seeking enlargement of time to file an Appeal and admission of a

Memorandum of Appeal

, they must show that they have a

‘good cause’

or

‘sufficient reason’

for doing so.

16. The principles to consider on whether or not to enlarge time to file an Appeal out of time are enunciated in the case of

Dilpack Kenya Limited –vs- William Muthama Kitonyi [2018] eKLR

citing with authority the case of

F

irst American Bank of Kenya Ltd –vs- Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO.2255 of 2000 [2002] 1 EA 65

, the court stated: -

“…to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant…”

17. It is worth-noting that the Application herein has been filed after almost 3 months of the delivery of

Judgment

on

13

th

May, 2020

. The Application together with the

Memorandum of Appeal

were filed on

17

th

August, 2020

. This court finds that the application and

Memorandum of Appeal

have not been filed in a timely manner.

18. The Applicant’s Counsel stated that the delay in filing of the Appeal was because they did not know nor receive Judgment from the trial court and they only got to know that the Judgment had been delivered when they were paid the award by the 1

st

Respondent on

17

th

August, 2020

.

19. It has definitely been established through the 1

st

Respondent’s Counsel and evidence of emails the Applicant’s counsel sent to court and the 1

st

Respondent, that both parties were aware of the date the

Judgment

was to be delivered and on

11

th

May, 2020

, the Applicant informed the trial court of their agreeability to the 1

st

Respondent being granted a 30 days stay.

20. It is evident that the Applicant was aware of when the Judgment was to be delivered and inadvertently failed to act on it and is before court in the guise that they were not aware of the delivery of the said Judgment.

21. Be that as it may, while I find that the Applicant has not given to this court any sufficient reason for not filing the Appeal on time, the interests of justice would be served to the parties by enlarging time and admitting the already filed

Memorandum of Appeal

as duly filed so that the issues which have been raised herein are ventilated at an appropriate hearing and determined on merit.

22. The Applicant’s Appeal is against the award as it is alleges to be inordinately low and also for not having been awarded costs of the suit by the trial court. The 1

st

Respondent has not shown any prejudice that they stand to suffer if the enlargement of time is granted and/or that it cannot be compensated by an award of costs.

23. For the above reasons, the Application dated

30

th

September,2020

is allowed in terms of prayer No.1. The

Memorandum of Appeal

filed on

29

th

June, 2018

is deemed to be properly on record and the Applicant is granted 30 days to put in their Record of Appeal. Mention on 14

th

June for directions on the hearing of the Appeal.

24. Costs shall abide by the outcome of the Appeal.

It is hereby so ordered.

DATED, SIGNED and DELIVERED VIRTUALLY at MOMBASA this 6

th

day of May, 2021.

D. O. CHEPKWONY

JUDGE