Edward Njagi Nkariama (suing as Legal Representative of the Estate of Fredrick Mutegi alias Manager (Deceased) v Blue Shield Insurance Company Ltd [2007] KECA 479 (KLR)

IN THE COURT OF APPEAL OF KENYA PEAL AT NYERI

Civil Appeal 235 of 2002

EDWARD NJAGI NKARIAMA (suing as Legal Representative of the Estate

of FREDRICK MUTEGI alias MANAGER (DECEASED).......APPELLANT

AND

BLUE SHIELD INSURANCE COMPANY LTD. …............. RESPONDENT

(An appeal from the Order and Ruling of the High Court of Kenya At Merru (Kasanga, J)

dated  1st August, 2002In H.C. Misc. Civil Application No. 77 of 2002)

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JUDGMENT OF THE COURT

On 22nd may, 2002, the respondent in this appeal Blue Shield Insurance Co. Ltd., through its advocates, filed a Notice of Motion in the High Court of Kenya at Meru against the appellant Edward Njage Nkariama, the Legal Representative of the estate of Fredrick Mutegi Njage alias  Manager.  As the same Notice of Motion is  important for this judgment, we reproduce it here below:-

“NOTICE OF MOTION UNDER SECTIONS 79 (G) 3 AND 3A AND ORDER XLI RULE 4 OF THE CIVIL PROCEUDRE RULES.

TAKE NOTICE  that this court will be moved on the  30th day May, (sic) 2002 at 9. 00 O’Clock or soon  thereafter as the counsel for the applicant for the orders (sic):-

1.  That this application be certified urgent and be heard ex-parte  initially.

2.  That this Honourable Court be pleased to grant leave to appeal against the judgment of the  Senior Principal Magistrate dated 22nd January, 2002 in CMCC No. 462 of 2000.

3.  That this Honourable Court be pleased to order stay of execution of the decree  in CMCC 462 of 2000 until the intended appeal is heard and determined or until further orders.

4.  That costs be in the intended appeal.

WHIICH APLICATION is supported by the affidavit of Martin Mugambi Mithega and the following grounds.

1.  That the respondent has  taken out warrant of execution and they have proclaimed applicant’s properties.

2.  That there is no  inordinate delay and no  prejudice shall be suffered by the respondent.

3.  That the applicant shall  abide by any  condition this Honourable Court may see fit  and just to impose.

4.  That the application has merit.”

That application was supported by affidavit of Martin Mugambi Mithega to which we shall refer later  in this judgment.  The appellant  opposed that application on  grounds that the application was frivolous,  vexatious and  abuse of the  process of  the court; that the  application was incompetent and bad in law, and that the notice of motion was  res judicata.  No replying affidavit was filed by the appellant.

The application was heard by the superior court (Kasanga Mulwa, J) who after full hearing allowed  it and ordered the respondent to file his appeal within 14 days of the date of the ruling which was  11th August, 2002 .  We understand that  the appeal has since been filed in the High Court, Meru.  The appellant was aggrieved by that decision and hence this  appeal which is premised on six grounds .  Before us, Mr. Riungu,  the learned  counsel for  the appellant  submitted  that the main and  only  ground of appeal is that the learned Judge gave orders which were not  sought  in the application as the motion sought leave to appeal  but the learned Judge gave order for leave to appeal out of time which was not sought  in the  application that was before him.  He  contended that  during the hearing of the Notice of Motion  before the superior court, the learned counsel for the respondent  stated that the application was for leave  to appeal out of time  and admitted that in the  application the words “out of time” were  omitted, but as the respondent did not  amend the Notice of Motion, the court had no jurisdiction  to grant an order   not sought even though  the court might have been  aware of the same mistake.  Mr. Kariuki Manasses, the learned  counsel for the respondent, on the  other hand opposed the appeal  and  urged us to note that the Notice of Motion before the learned Judge of the superior court was brought  under section 79 G which is clearly  a provision for setting out time for filing appeals from  subordinate  courts and which  provides  for admission of appeals from the subordinate courts  out of time.  As the application was brought under that section, it was  an application for leave  to file an appeal out of time and the learned Judge rightly dealt with it as such notwithstanding the omission of the words “out of time”  in the Notice of Motion.  In his view, the learned judge exercised his discretion properly on the matter that was before him and we should not interfere with the exercise of the discretion unless we are satisfied it was not exercised properly.  He referred us to several authorities to buttress his argument.

We have  considered the rival submissions, the record, and the law.  It is certain the  learned judge in  deciding  the application that  was before him  brought under section 79 G of the Civil Procedure Act and under Order XL1 Rule 4 of the  Civil Procedure Rules,  was exercising discretionary powers.  That being the case,  we can only interfere with his exercise of such discretionary powers under certain  well defined principles.  These principles are succinctly spelt out in the case of Mrao Ltd. v.  First American  Bank of Kenya Ltd. & 2 others [2003] KLR 125,  where this Court held inter alia as follows:-

“2.  The Court of Appeal may only interfere with the exercise of a court’s judicial discretion if satisfied:

(a)    The Judge misdirected  himself on law; or

(b)    That he misapprehended  the facts; or

(c)    That he took account of considerations of which he should  not  have taken account; or

(d)    That he failed to take account of consideration of which he should have taken account;; or

(e)    That his decision, albeit a discretionary one, was plainly wrong.”

In the  appeal before us, the appellant , if we  understand Mr. Riungu, states, and it is his  first and main ground of appeal, that  the second prayer in the application, though brought under section 79G of the Civil Procedure Code, was at  variance with the provisions of that section as it was  seeking that leave to appeal be granted by the court and not leave to appeal out of time.  That  being the case, the appellant’s  position is that the learned Judge of the superior court in granting the  respondent  leave  to appeal  out of time  considered a matter that was not asked for  and so exercised his discretion  improperly.  With respect, we do not agree.  The relevant prayer that was before the superior court was clearly premised upon section 79G of the Civil Procedure Code.  That section states as follows:-

“79G.  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.”

This provision can only be dealing with the time of lodging an appeal in the High Court from subordinate court and leave to appeal out of time.  It does not deal with leave to appeal, its being invoked in the notice of Motion that was before the superior court was an indication that the application was for leave to appeal out of time and not that for leave to appeal which is provided for elsewhere in the same Code whenever leave to appeal is necessary.  Further, the reasons appended to the Notice of Motion which we have reproduced  hereinabove are clearly reasons that are  in support of application for leave to appeal out of time and not for leave to appeal. Lastly, we have looked at the affidavit in support of the application by Martin Mugambi  Mithega.  Paragraphs 5, 6, 7, 9 & 10 are all on matters that would go to support application for leave to appeal out of time.

We have perused and considered the ruling of the learned Judge.  He was  fully alive to this issue and  in his ruling he  addressed himself thus:-

I have  considered the Notice of Motion, the affidavit in support, the grounds of  application as well as the  submissions  by counsel.

It is evidence from the affidavit in support of the application that the applicant is seeking leave to appeal out of time more so in light of paragraph 5, 6 and 7.  The face of the application contains a prayer for leave to appeal but leaves out the words “out of time”.  It is my view that such omission is not fatal.  The motion is to be considered together with affidavits and as such a mistake by whoever drafted cannot be visited on the applicant.

As is clear above, we have also, in our own analyzed  afresh  what was before the superior court, as is required  of us, this  being a first appeal -  (See Selle and  another v.  Associated Motor Boat Company Ltd. and Others, (1968) EA 123, we cannot fault the learned Judge of the superior Court in his findings on this issue. Substantive justice demanded the action he took.  As this is the only issue taken by the appellant before us, this appeal cannot succeed. It is dismissed with costs  to the respondent.

Dated and delivered at Nyeri this 18th  day of May, 2007.

R.S.C. OMOLO

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JUDGE OF APPEAL

E.M. GITHINJI

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JUDGE OF APPEAL

J.W. ONYANGO OTIENO

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR.