John Tomno Cheserem v Sammy Kipketer Cheruiyot [2018] KECA 850 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: J. MOHAMMED, JA. (IN CHAMBERS)

CIVIL APPLICATION NO. 59 OF 2017

BETWEEN

JOHN TOMNO CHESEREM....................................APPLICANT

VERSUS

SAMMY KIPKETER CHERUIYOT................... RESPONDENT

(An application for extension of time to file and serve the Notice of Appeal and Record of Appeal arising from the Judgment and Decree at Eldoret,(C. W. Githua, J.) dated 31st day of January, 2017

RULING

Introduction:

[1]  This is an application by way of Notice of Motion dated 19th June, 2017 brought pursuant to Rule 4 of the Court of Appeal Rules (the Rules).  The applicant seeks the following orders:

“(1) That this honourable court be pleased to grant leave to the Appellant/Applicant to file the Record of Appeal out of time against the Judgment and decree of Honourable justice C.W. Githua read and delivered on the 31/1/2017 in Eldoret HCCC Appeal No. 151 of 2011 between John Tomno Cheserem (Plaintiff) Versus Sammy Kipketer Cheruiyot (Defendant).

(2) That upon granting prayer (1) above, the annexed draft Record of Appeal be deemed as properly filed and served subject to payment of the requisite court fees.

(3) That costs be in the cause.”

[2] The ground upon which the applicant relies on in support of his application include:

“(a) That the time within which to file the Record of Appeal has lapsed.

(b) That the delay was caused by intervening matters beyond the Appellant/Applicant’s control.

(c) That the Applicant/Appellant has a good Appeal with high chances of success and the intended Appeal is not frivolous as the same raises weighty issues for determination by this honourable court.

(d) That the delay to file and serve the Record of Appeal within the prescribed time is not inordinate and this application has been filed without delay.

(e) That no prejudice will be suffered by the Respondents should this application be granted as they can be compensated by an order for costs.

(f) That this application is purely made on the considerations of justice and fairness and it is our prayer again in the interest of fairness and justice that this application be allowed.”

Submissions by Counsel:

[3] At the hearing of the application, learned counsel Mr Aseso was holding brief for Mr Kagunza, learned counsel for the applicant. He submitted that the Notice of Appeal was filed timeously; that the delay in filing the record of appeal was occasioned by the delay in obtaining copies of proceedings and judgment; that a letter bespeaking the proceedings was copied to counsel for the respondent in compliance with Rule 82 of the Rules.  Counsel urged that the application be allowed to enable the applicant file the Record of Appeal and the appeal be heard on merit.

[4] Learned counsel, Ms Adhiambo, represented the respondent and relied on the Grounds of Opposition filed on 3rd October, 2017. Counsel submitted that the application is a gross abuse of the court process and is devoid of merit, is an afterthought and should be dismissed with costs; that the delay in filing the application is inordinate and has not been accounted for in contravention of Rule 82; that the reasons stated for delay have no basis in law or at all; that the time spent for preparation of the proceedings is not computed within the requisite 60 days of filing the record of appeal; that no certificate of delay has been issued; that the application for proceedings was lodged outside the requisite 30 days from the date of judgment and that the applicant failed to institute his appeal within the requisite time and is guilty of laches. Counsel urged the Court to dismiss the appeal with costs.

Determination:

[5] I have considered the application, the affidavits on record, submissions by counsel and the law. The discretion that I am called upon to exercise in this application is provided under Rule 4 of the Rules which provides:-

“The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”

[6] The impugned judgment was delivered on 31st January, 2017.  The applicant lodged the Notice of Appeal on 27th February, 2017. Rule 75 provides that the Notice of Appeal should be lodged in duplicate within 14 days from the date of the decision.  The Notice of Appeal was therefore filed outside the prescribed time.

[7]The principles guiding the court on an application for extension of time premised upon Rule 4 of the Rules are well settled and there are several authorities on it.  The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered.  It is therefore upon an applicant under this rule to, explain to the satisfaction of the Court that he is entitled to the discretion being exercised in his favour.  In exercising my discretion I ought to be guided by consideration of the factors started in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and any interested parties if the application is granted, and whether the matter raises issues of public importance. In the case of Fakir Mohammed V Joseph Mugambi & 2 Others, Civil Appln No. Nai 332/04(unreported) this Court rendered itself thus:-

“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the structure of “sufficient reason” was removed by amendment in 1985.  As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.  The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance- are all relevant but not exhaustive factors.”

[8] The matters to be considered are not exhaustive and each case may very well raise matters that are not in other cases for consideration.  In Mwangi V. Kenya Airways Ltd, [2003] KLR 48, the Court having set out matters which a single Judge should take into account when exercising the discretion under Rule 4, went on  to hold;-

“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive.  Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”

[9]  The applicant seeks this court's discretion to allow him to file his notice of appeal and record of appeal out of time. The issue that falls for my consideration is whether the explanation given by the applicant for the delay in lodging his appeal is reasonable and excusable. It is upon the applicant to place sufficient material before the Court which would explain the delay in filing the Memorandum and Record of Appeal. The Court has to balance the competing interests of the applicant with those of the respondent. This was well stated in the case M/S Portreitz Maternity V. James Karanga Kabia, Civil Appeal No. 63 of 1997where the Court stated:

“That right of appeal must be balanced against an equally weighty right that of the Plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the Plaintiff of that right.”

The law does not set out any minimum or maximum period of delay.  All it states is that any delay should be satisfactorily explained.

[10] I am guided by the case ofWasike V Swala [1984] KLR 591 where this court stated:

“As Rule 4 now provides that the Court may extend the time or such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors;

“a) That there is merit in his appeal.

b) That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; and

c) That the delay has not been inordinate.”

[11]  Regarding the issue whether there is merit in the appeal, the applicant’s draft memorandum of appeal raises various grounds of appeal inter alia whether the tenancy between the applicant and the respondent was a controlled tenancy within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments Act (Cap 301). An arguable appeal does not necessarily mean one which will succeed. On the issue of whether the extension of time to file the notice of appeal and record of appeal will cause undue prejudice to the respondent, counsel for the respondent submitted that the respondent has already levied distress for rent and litigation should therefore come to an end.

[12] On the issue of delay, I note that the impugned decision was delivered on 31st January, 2017, the notice of appeal is dated 11th February, 2017 but was lodged in court on 27th February, 2017 and was therefore filed outside the prescribed 14 day period. I further note that the letter bespeaking copies of the proceedings was dated 27th February, 2017 and was received by the Court on 16th March, 2017.  Rule 82 provides that the letter bespeaking proceedings should be filed within 30 days of the date of the impugned decision.  The letter bespeaking proceedings was therefore filed out of time.

[13]Learned counsel for the applicant averred in her affidavit verifying the urgency of the application filed on 19th June, 2017 that;

“… the delay in filing the Record of Appeal within the requisite period was caused by the delay in obtaining typed and certified copies of proceedings from the court which delay was caused by reasons beyond the control of the applicant.”

The reasons for the delay have therefore not been substantiated upon satisfactorily.

[14] It is instructive that there is no Certificate of Delay obtained from the court to support the applicant’s application.  It is also notable that the instant application was filed six months after the delivery of the impugned judgment.

[15]  It is upon the applicant to place sufficient material before the court which would explain why there was delay in filing the record of appeal. The court has to balance the competing interests of the applicants with those of the respondent.

[16]  A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour.  There has to be valid and clear reasons upon which discretion can be favourably exercised.  Aganyanya, JA in Monica Malel & Another V. R, Eldoret Civil Application No. Nai 246 of 2008 stated;-

“When a reason is proposed to show why there was a delay in filing an appeal it must be specific and not based on guess work as counsel for the applicants appears to show ….. the applicants are not quite sure of why the delay in filing the notice of appeal within the prescribed period occurred, which amounts to saying that no valid reason has been offered for such delay.”

[17]  I am guided by the case of Waweru & Another  V Karoni [2003] KLR 448 where it was stated that:

“The rules of the Court must prima facie be obeyed and in order to justify a Court in extending the time during which some step in the procedure requires to be taken there must be material on which the Court can exercise its discretion.”

[18]   In the circumstances of this case, there is no material placed before me to warrant the exercise of my discretion in favour of the applicant and accordingly, I find that this application has no merit.  In the result, I dismiss the Notice of Motion dated 19th June, 2017 with costs to the respondent.

Dated and delivered at Eldoret this 15th day of February, 2018.

J. MOHAMMED

………………………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR