Attorney General v Peter Ombuna Makori [2015] KEHC 1327 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION NO.  1 OF 2015

HONOURABLE ATTORNEY GENERAL …………  APPLICANT

VERSUS

PETER OMBUNA MAKORI ……………………….RESPONDENT

RULING

By a Notice of Motion Dated 5th January 2015 and filed in court on the same day, the applicant Attorney General seeks from this court orders:-

That the court do  grant the  applicant extension  of time to  file  and serve Memorandum and  Record of Appeal against  the whole judgment  of the Senior Principal Honourable M.C Chepseba  at Milimani  dated 18th June 2014  vide Milimani CM CC 12784 of 2006.

That there be a temporary stay of execution of the judgment of the said court and consequential decree pending hearing and determination of this application interpartes.

That there be temporary stay of execution of judgment of the said court and consequential decree pending hearing and determination of the appeal against the said judgment and decree.

The application is predicated on  the grounds that the applicant is apprehensive  that the said judgment  was  underserved  and hence the  need for  the appeal; the judgment  was delivered on 18th June 2014  wherein the respondent was awarded  kshs 3,500,000; that the Senior  Deputy  Solicitor  General has advised  that an appeal  be filed  after being briefed on 24th September  2014  by which  time the time for  filing of  appeal  had lapsed  hence the  application for extension  of time; that the  intended  appeal is meritorious  and raised  serious  issues  of law which require  adjudication  and determination by this court; that the applicant  stands to suffer substantial  and irreparable  loss if the orders  sought  are not  granted  and that it is in the interest  of justice that this  application be allowed.

The application is further supported  by the  affidavit  of Martin Muriuki  Munene State Counsel  whose depositions  reiterate what is  contained  in the application  and grounds  in support thereof.  He annexes  copy of plaint, proceedings  and judgment, memo  by the Senior  Deputy Solicitor  General directing that  an appeal  be lodged  against  the decree  an a draft Memorandum of Appeal.  Mr Munene further deposes that the delay in filing this application is not inordinate but excusable.

The respondent  Peter Ombura Makori  opposed  the application and filed replying affidavit  sworn on 30th April 2015  reiterating his averments  in the plaint in the court  below  that on two occasions he was  arrested  by police officers  and eventually charged with a criminal offence  of robbery  with violence  against Father John Hannon, the then Parish Priest  of Matasia  Catholic  Church  who died  in the course of the said robbery.  He was tried in criminal case NO.  704/2005 and was acquitted under Section 210 of the Criminal Procedure Code on 22nd March 2006.

That he filed  this suit and  after the initial  hearing  he was awarded  kshs 3,000,000 but the  applicant successfully applied to set  it aside and the case heard  denovo and concluded  on 18th  June 2014  wherein he was awarded  kshs  3,500,000 but that  there has been no appeal and there  is no explanation for the delay of 171 days when this application was  filed.

The respondent contends that he has satisfied all the conditions  for  recovery of the decretal  sum including filing for  Mandamus  orders, and obtaining and serving  certificate  of order against  the  Government  but the applicant has  refused to pay the decretal sum.  Further, that conditions for stay of execution pending appeal have not been fulfilled hence the application herein should be dismissed with costs.

Both parties  agreed to dispose of the application by way of written submissions.

In their  written submissions dated 19th May 2015  and filed in court  on 20th May 2015, the applicant  submitted that  the grant  of leave  to file an appeal out of time is  a matter of  judicial discretion, which  principle  was espoused in the  case of Machira & Company Advocates V Mwangi & Another (2002) 2 KLR  and  expounded  in Kenya Shell Ltd  Vs Kobil Petroleum Ltd (2006) 2 EA 132;  Leo Sila Mutiso V Rose Hellen  Wangari Mwangi Nairobi  CA 255/1995 cited Ndichu Nduati V Jephita  Murigu & Another (2012) e KLR .

The applicant  submitted  that there  was no inordinate  delay in bringing  this application  and that after judgment  was delivered  on 18th June 2014, the counsel  in conduct  of the matter  briefed the SDSG  on          24th September 2014  who advised  that an appeal be filed and by that time the  period for  filing an  appeal had lapsed  and the deponent counsel was allocated  the file on 13th October  2014 to  file  an appeal out of time  which application  was filed  on 5th January 2015  hence the delay was not inordinate.  They relied on the decision in Josephine Njoki Mwangi v HFC (K) Ltd (2014) e KLR where the Court of Appeal granted leave to file Notice of Appeal out of time after lapse of 5 months.

On whether  the applicant has offered  reasonable  justification for the  delay in preferring this application it is submitted that  the present  counsel  was only allocated  the file  on 13th October 2014.

On whether  the applicant  has an arguable  and meritorious  appeal, it was submitted that  the draft  Memorandum of Appeal annexed  shows that  there was no proof  on a balance probabilities  the respondent’s  claim for malicious prosecution as no evidence of malice  was adduced  against the  appellant.  They relied on Kagane V The Attorney General (1969) EA 643 where Rudd J laid down principles that a plaintiff must prove in malicious prosecution proceedings.  Further, the applicant submitted that the award of kshs 3,500,000 as general damages was erroneous as the amount was excessively high and made without any basis and exaggerated.  In addition, that there was evidence  of probable  and reasonable  cause for  arresting  and charging  the respondent   with  the offence of Robbery with  Violence  leading to the death of  Father John F. Hannon.

The applicant further submitted that in any case, an arguable appeal need not be one with overwhelming probability of success for the application herein to be allowed.  Finally  the applicant submitted that the respondent shall suffer  no prejudice  if the application is allowed since  the applicant has a right of appeal which he  wishes to exercise  after being dissatisfied  with the  judgment of the lower court.

The applicant  urged the  court to exercise  its  discretion  judiciously  in favour of  the applicant  to avoid  an injustice and for the  ends of justice to prevent  the abuse of  the process of the court with costs to the applicant.

The respondent’s counsel filed  his written submissions  dated 5th June 2015  on the same  day seriously opposing  the application as presented  and urging  this court to  dismiss the  twin application with costs.  The  respondent  reiterated  what was  deposed  in his  replying affidavit  and gave a meticulous  history of the case in the  court below  from the time the  cause of  action  arose  until the  this application was lodged  on       5th January 2015.

In the respondent’s view, the application was brought after an inordinate and inexcusable delay from 18th June 2014 to 5th January 2015, which delay has not been explained.  He relied on the decision of Mongira & Another vs Makori & Another Kisumu CA 20/2004.

In his view, the unexplained delay of 171 days is inexcusable.  Further, that the  intended  appeal  is not  meritorious  as the applicant  did not call any evidence  to prove the guilt of the respondent  in the criminal  case and neither  did they  controvert  the evidence  adduced by the respondent in the subordinate court.  It was submitted that the respondent will be prejudiced by the  delayed  justice whereas the applicant being the  Government of Kenya  will not  and had not shown any prejudice that  will be occasioned  to it if  the  application is denied, as the decree  is a monetary one.  It was  further submitted that as  no  security had been offered by  the applicant in an application  for stay  of execution pending appeal, to stay  execution will be  depriving  the successful respondent  fruits  of his  lawful judgment.  He prayed that the application be dismissed with costs.

I have  carefully considered  the  application by the Attorney General, the grounds thereof, supporting  affidavit  and annextures  as well as  the written  submissions  by both  parties  and the decisions relied on.

In my view, the issue for determination are:

Whether the application is entitled to orders extending time within which an appeal should have been filed.

Whether  he applicant has  satisfied  this court on the  conditions  for stay of execution of decree  pending  appeal

What orders should this court make

Who should bear the costs of the application

On the first issue of leave to appeal, the applicable   law for application for leave to appeal out of time is Section 79 G of the Civil Procedure Act which enact:

“ Every  appeal from a subordinate  court to  the High court shall be filed  within a period of thirty  days from the date of 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”.

The provision thereto provides that:

“An appeal may be admitted out of time if the applicant satisfies the court that he had good and sufficient cause for not filing the appeal in time”.

The above  provisions  have found  espousement  in the Supreme Court decision  in Nicholas  Kiptoo  Arap Korir  Salat v IEBC & 7 Others Sc Appl. No. 16/2014  which sets  out 7 principles that a  court  should consider  in exercising  discretion  to extend  time namely:

Extension of time is not a right  of a party, it is an equitable remedy that is only available  to a deserving  party at the discretion  of the court;

A party  who seeks for extension  of time has  the burden  of laying a basis to the satisfaction  of the court;

Whether  the court should exercise  the discretion to extend time is  a consideration to be made on a case to base basis;

Whether there is a reasonable reason for the delay.  The  delay should  be explained  to the satisfaction of the court;

Whether there will be any prejudice suffered by the respondents if the extension is granted.

Whether the  application has  been brought  without undue  delay; and

Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

The applicant  has submitted  that the application was  brought  without undue delay and that delay was  occasioned by the briefing of  the SDSG on 24th September 2014 of  the outcome  of the case in the court below  and that it was not until  13th October 2014  that the  present counsel handling  the matter was allocated  the file and  he therefore  timeously  filed  the application on 5th January 2015 to extend  time for filing as appeal since by that  time, the  stipulated 30 days  of appeal from  18th June 2014  had elapsed.  It was  also submitted that the respondent  will not suffer  any prejudice if the orders  sought are  granted as the applicant  will be exercising  its right of appeal under  the law.  Further, that  the  appeal as intended  is arguable  and meritorious  since the  respondent  failed to prove  his case against  the applicant  in the court below  on a balance of  probabilities  that his  prosecution  for the robbery incident  was malicious and that  the award of  kshs 3,500,000 as general damages  for malicious  prosecution  lacked  any foundation and  was  manifestly exaggerated.

The respondent on the other hand vigorously resisted the application arguing that it lacked merit, the intended appeal has no merit, and that the application was belatedly filed as an afterthought and that no reasonable explanation has been offered for the inordinate delay.

It is trite law that an application for extension of time seeks for an equitable remedy.  It is not a right in itself.  The applicant indeed had a right of appeal guaranteed by Section 79G of the Civil Procedure Act Cap 21 Laws of Kenya, following the judgment of the lower court delivered on 18th June 2014.  He did not exercise that right and after nearly seven months, he sought leave of court to extend the period within which he can exercise that right of appeal.

Being  an equitable  remedy, the  order extending  time can only  be granted to a deserving  party at the discretion of the court, which discretion, nonetheless, as correctly submitted by the applicant must  be exercised  judiciously  and not capriciously.

The record  annexed  to the applicant’s supporting  affidavit shows that  the primary suit was instituted in 2006  and heard on  16th October  2012 and judgment  delivered on 7th February 2013 exparte, which judgment  was successfully  set aside  by consent  of both parties on 20th December  2013 and  a denovo interpartes hearing ordered  and commenced  on 28th January 2014.  The respondent/plaintiff testified and closed hid case.  The applicant herein closed his case without calling any witness and only filed written submissions.  Judgment was delivered on 18th June 2014 in the presence of counsel for the respondent and absence of the applicant’s representative.  Decree and certificate of costs were drawn on 4th July 2014.  Annexture MMM3 dated 24th September 2014  is  a memo to Senior Deputy Solicitor General (SDSG) by G.N. Kamau  litigation counsel  briefing her boss  of the outcome  of the case  which was determined on 18th June 2014  and advising  a settlement.  From  24th September 2014 when the brief was given by the litigation counsel to her boss, the file  was only  acted upon on 1st October 2014  to the effect  that “ settlement  not recommended  for now.  Quantum is excessive if an appeal should be considered by CLC”  followed by a consensus by SDSG on 3rd October 2014 thus:

“file be allocated to counsel to file an appeal as the case was distinguishable from Odhiambo’s case.  There is no torture in this case.”

Mr Munene counsel  for the applicant  deposes  that  he was allocated  the file on 13th October 2014  and that he timeously filed the  application herein on  5th January 2015.

What  this court  has been  taken  through by the applicant is the movement  record of the file at the  Office of the  Honourable Attorney General  and not  reasons  for delay for filing  the appeal and the application herein in time and after nearly 7 months.  No single  explanation has been  offered why  from 18th June 2014  it took three months  to  24th September 2014  for the SDSG to be briefed  on the outcome  of the case yet the briefing memo clearly states in part:

“The Attorney General filed a Memorandum of Appearance together with a defence on 22nd March 2007 (folios 4 & 5a).  The case proceeded for hearing on various dates and was fully defended by state counsel.Both parties closed their cases and written submissions were filed  by both parties.  Judgment was delivered on 18th June 2014, whereby the plaintiff was awarded kshs 3. 5 million.  As of 30th September 2014, the outstanding decretal amount is kshs 3, 605, 0000……….’

The said memo does not provide any explanation to the SDSG for the delay in filing an appeal   in time.  It is clear that instructions to appeal were given on 3rd October 2014 but those instructions were being given by a superior officer to an officer below her   and not by a client to his advocate.  The correspondence  shows that  Office of the Attorney General was all along aware of the proceedings, participated  in the  case  and knew the  outcome  but nothing  is mentioned  between the date of  judgment  and date when  the memo  was written  to the SDSG.  Even  after receiving  instructions  to “appeal” on 13th October 2014, it took the same  office  up to 5th January 2015  to  file an application for leave  to file  an appeal out of time.  This delay is not explained at all.

The court  therefore  does not  hesitate  to find that  there was outright  complacence, intentional  and contumelious delay  on the part of  the applicant in seeking  the  discretionary orders  of this court  extending  time for  filing  an  appeal out of time.  I say contumelious and intentional because there has been no attempt to explain or lay a reasonable basis for the delay to the satisfaction of the court.

By the time the  application herein  was filed, the respondent had  spend  all his time  and energy  going through  the motions  of satisfying  the legal requirements for seeking  settlement of decree  against  the Government, including  obtaining  a decree, certificate  of order against  the Government  and certified  copies of proceedings and judgment  which were all served on the Honourable Attorney General on 1st September 2014. The procedure for executing decree against the Government is never a simple procedure. It is therefore expected that the Office of the Attorney General would have given an explanation to be considered by this court as to why it took them all that time to file an appeal in time. It has not been stated that the delay or failure thereof was inadvertent.

Article  159(2) (b) of the Constitution abhors  delayed   justice , for delayed  justice is denied justice  for the respondent  who had  by 5th January 2015  expected to  receive  payment for  his lawfully obtained judgment.

Albeit it was submitted that the intended   appeal is arguable, it is not for this court at this stage to delve into the merits of the intended appeal, which proposition is nonetheless not one of the principles set out by the Supreme Court in the Nicholas Kiptoo Arap Korir Salat case (supra).  Even then the applicant  had an opportunity  to file an appeal  within 30 days  statutory period or to timeously  file this application providing  cogent reasons  for the delay, to warrant  exercise of this court’s discretion.  They did not.  In addition, section 79G of the Civil PROCEDURE Act contemplates two scenarios- one is where time for filing an appeal has expired, an appeal could nonetheless be filed out of time and then leave is sought to extend the period thereof. The second scenario is where time for filing an appeal has lapsed; the applicant can file an application for leave to file an appeal out of time. The applicant herein opted for the second scenario. He came to court seeking for this court’s discretion but gave no plausible reasons for the delay. The applicant maintains that the application was made without any delay which is not the case.

To grant the prayers sought will be exercising the discretion of this court lavishly at the expense of the respondent’s legitimate expectation that after 7 months of waiting for payment, the decree would be settled

Having squandered that opportunity to appeal and having delayed to bring this application, the applicant cannot be heard to demand for the right that now crystallized into a discretionary remedy.  I reiterate that nothing like an inadvertent mistake   was advanced for the delay.  It has also not been demonstrated that the case herein is of a public interest nature to warrant consideration for extending time.

Consequently, I find that this application for leave to file an appeal out of time is not merited and I decline to grant it.

On the second issue of whether   stay of execution should be granted pending appeal, the answer partly lies in the determination on issue No. 1 above. The applicable law is Order 42 rule 6 (2) of the Civil Procedure Rules.

The purpose of stay of execution of decree pending appeal is to preserve the subject matter of the suit, to maintain the status quo, so that should the appeal be successful, it should not be rendered nugatory.

In this case, the applicant has failed to satisfy this court that they deserve leave extending time for filing the appeal. They did not file an application for stay, without undue delay. They did not demonstrate that they stand to suffer substantial loss if the stay sought is declined and the appeal succeeds, then it shall be rendered nugatory.  The applicants’ submissions concentrated on the merits of the appeal. That is a consideration that the Court of Appeal and not this court take into account in determining whether or not to grant the orders of stay sought pending appeal.

On the issue of security for the due performance of decree, none was offered. Nonetheless, the applicant being the Government of Kenya principal legal advisor and representative, this court believes that that security of kshs3. 5 million is guaranteed and therefore that factor cannot influence this court in granting or refusing to grant stay.

Having found  that the applicant’s application for leave   is unmeritorious  and  dismissed it, there is no appeal or intended  appeal which would be  rendered  nugatory should stay be declined  and  execution  of decree be allowed  to proceed. Further, no prejudice is shown to be suffered should the application be declined. On the other hand, I find that the respondent who has waited for justice since 2006 will be prejudiced by a further delay. The applicant did have a second opportunity to defend the suit after formal proof hearing. They cannot have it all the time. Justice is for both parties to a dispute and in this case, in my view, delay would defeat justice for the respondent.

Having found that the applicant   has not demonstrated that they deserve leave to file an appeal out of time, and that the application for stay is not deserved in the circumstances of this case, I would therefore not belabor determining the merits of the intended appeal which the applicant has focused on all through.

Accordingly, I decline to grant the prayer for stay of execution of decree pending appeal or intended appeal and dismiss it.

In the end, I dismiss the applicant’s entire application dated 5th January 2015 with costs to the respondent.

Dated, signed and delivered at Nairobi in open court this 14th day of October 2015.

R.E. ABURILI

JUDGE

14/10/2015

Coram R.E. Aburili J

C.A. Adline

Mr Onyango holding brief for Nyachoki for respondent

Mr Munene for the applicant.

Court -Ruling read and delivered in open court as scheduled. Ruling to be typed.

R.E. ABURILI

JUDGE

14/10/2015