Joseph Gikonyo T/A Garam Investments v Stephen K. Kibunja T/A Kibunja & Associates [2016] KEHC 3009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION NO.343 OF 2015 A

JOSEPH GIKONYO T/A GARAM INVESTMENTS................................APPLICANT

VERSUS

STEPHEN K. KIBUNJA T/A KIBUNJA & ASSOCIATES.................RESPONDENT

RULING

1. By notice of motion dated 31st July 2015 the applicant seeks from this court orders that:

1) The application be allowed to file to appeal out of time against the ruling of Honourable I. Gichobi (Ms) delivered on 27th March 2015.

2) That the appeal herein be deemed to be duly lodged within the prescribed time.

3) That cost of this application is provided for.

2. The application is brought under the provisions of Order 50 Rule 6 and 7 of the Civil Procedure Rules.  Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya and all other enabling provisions of the law.

3. The application is predicated on the grounds that;

1) The applicant’s counsel was not made aware by the lower court of the date of the delivery of the ruling.

2) The delay is lodging this appeal is not attributable to the applicant or his advocates.

3) The court had discretion to enlarge time as the justice of the case demands.

4) No party will suffer prejudice if this application is allowed.

4. The application is further supported by the affidavit sworn by Joseph Gikonyo T/A Garam Investments. According to the applicant, the lower  court did on 26th September  2014  indicate  to the parties’  advocates  that  it would  deliver the  ruling  on notice  and that the  applicant’s advocates   were never  served  with any notice of delivery  of the ruling  and only learnt  of the said ruling on 30th June 2015.  That upon learning  of the said ruling, his advocate wrote to  court  asking for copy of the ruling  and proceedings and that it  was  not possible  to lodge  the appeal in good time.  That the applicant’s advocates wrote letters to the lower court seeking to know the fate of the ruling and when it would be delivered.  Further that the application had been lodged without undue delay.

5. The application was opposed  by the respondent Stephen Kibunja  & Associates  who filed a  replying affidavit sworn  on 27th October  2015  deposing  that the application is frivolous, bad  in law and defective; that there  is no  evidence that the applicant  and  or his advocate  attempted to peruse  the court file  and  could not  find the ruling; that if the applicant  and or his advocate  were interested in finding out  the status of the  file they should have   perused the  court file  which was  available  after paying the requisite court  fees instead of  purporting  to write  letters to  the Executive Officer.  That the purported letter  to court  inquiring  on the status of  the ruling was never copied to the respondent  and that there is  no evidence  that it  was  served on the Executive Officer  at the Chief Magistrate’s Court  Milimani; that there is  no evidence to show that  the applicant’s  counsel  was not served with ruling notice; that there  was prolonged delay which has not been explained; that the respondent shall be prejudiced; no prejudice will be suffered by the applicant if the  orders sought  are not  granted; the applicant  had not shown that  he has an arguable  appeal; and that  no draft  Memorandum  of Appeal   has been annexed  by way of an affidavit to  this application to enable the  court interrogate  and exercise  its discretion.

6. The parties agreed to dispose of the application by way of written submissions.  The applicant’s submissions were filed on 18th December 2015 whereas the respondent’s submissions   were filed on 1st February 2016.  Both parties   submissions relied on decided case law.

7. The applicant in his submissions maintained  that had he been notified of  the date of  the ruling, he or his advocate  would  have attended  court  and the appeal herein  would have  been filed  in time.  The rest of the submissions reiterate the depositions in the affidavit, while maintaining that mistake of counsel should not be visited upon the client.  He relied on Murai Vs Wainaina (No. 4) [1982] KLR 38.

8. On whether delay in filing this application was inordinate, it was submitted that    the reasons for delay are provided and must be considered broadly and realistically, taking into account all the circumstances into account.  Reliance   was placed on Wasike V Khisa [2004] I KLR 197. It  was submitted that  32  days  delay  from date of  discovery  of the lower court ruling is not  unreasonable  and that Order  50  Rule  6  of the Civil Procedure Rules confers upon this court unfettered  discretion  so that the applicant is given an opportunity  to ventilate his  appeal and to facilitate  access to justice  under Article  48  of the Constitution.  That this court should invoke the overriding objectives of the law and do justice without undue regard to technicalities.  Reliance  was also  placed on  Joseph Njau  V Benson Mwau Nyeri CA  97/2012 [2013] e KLR where the court  allowed  an application for  extension  of time in the interest  of justice.  On  the exercise  of the court’s  discretion  the applicant relied  on African  Airlines V PTA Bank [2003] I EA1  where the court  held that  discretion  should be  exercised  judiciously.  On what prejudice would be suffered if extension of time was granted, the applicant relied on Njai V Highview Farm Ltd [2009] 2 EA 329. It was further submitted that no prejudice would be suffered if extension is granted.

9. On the chances  of  success of the  intended  appeal it  was submitted  that failure  to attach a draft  Memorandum of Appeal to the  supporting affidavit   is not fatal since it is attached to the  application  and the court has an  opportunity to view it.

10. On the part of the respondent   it was submitted that there   was delay in filing of the appeal which delay has not been explained.  Further, that the intended appeal does not raise any triable issues and that the respondent would suffer prejudice.  It is further submitted that no draft   Memorandum of Appeal was annexed to the affidavit as evidence of an arguable appeal that is intended to be filed.

Determination:

11. I have carefully considered the application for leave to file an    appeal from the ruling of the trial court in CMCC 2453/2014 on 27th March 2015 out of time.  I have also considered the opposition by the respondent   and the parties’ rival submissions.  The only issue for  determination is whether the applicant  has satisfied  this court that  he warrants  the exercise of  this court’s discretion to extend  the time within  which the  appeal as  intended  from the  ruling on  27th March 2015  should be  filed.

12. I must  however, resolve  the issue  of whether  such an application for extension of time to file an  appeal out of time can be  brought  under Order 50 Rule  6  of the Civil Procedure Rules.  Order  50 Rule  6 of the  Civil Procedure  Rules provides that :

“Where  a limited time has been  fixed for  doing any act or taking  any proceedings  under these  Rules, or by summary notice  or by order  of the court, the court shall  have power to enlarge  such time  upon such  terms if  any, as the justice of  the case  may require, and such  enlargement  may be   ordered  although  the application for  the same  id not made  until after  the expiration  of the time  appointed or allowed: provided that the  costs of any application be extended  such time and of  any order made thereon shall be borne  by the  parties  making such application, unless the court orders  otherwise.”

13. From the above  provisions  which  have their  basis in Section 95 of the Civil procedure  Act the  extension of time referred  to  herein is not  where such  time  that has  expired  is fixed by  statute, but fixed  or granted by  the court.  Accordingly, a court  of law cannot  purport to enlarge  time for  filing  an appeal out of time  by application  of Order  50 Rule  6  of  the Civil Procedure  Rules  or even under Section 95 of the Civil Procedure Act.

14. I shall  however excuse the applicant’s serious ignorance of the applicable provisions of the law and apply the  correct provisions  of the law being Section 79G of the  Civil Procedure Act as  read with  Section 59  of the Interpretation and General Provisions   Act Cap 2 Laws of Kenya.

15. Under Section 59 of the Interpretation and General Provisions   Act,

“Where  in a written law, a time  is prescribed  for doing  an act or  taking a proceeding, and power is  given to a court or other authority  to extend   that time, then unless a contrary intention appears  the power may be exercised   by the court  or other authority although the application  for extension is not  made until after the  expiration  of the time prescribed.

16. On the other hand, 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  30  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.”

17. It is from the above  provisions  of the law that  the jurisdiction  of this court  to  extend the time  for filing of an appeal  out  of time it derived, while applying the inherent   jurisdiction of this  court as reserved  under Section  3A of the Civil Procedure  Act  and invoking  the overriding  objectives  of the law under Sections 1A  and 1B  of the Civil Procedure Act.

18. The discretion to extend  time for  filing an appeal  out of time is unfettered  and should be  exercised  flexibly with regard  to a particular  case; and secondly, on relevant  factors  pertaining  to  each particular case which should  be taken into consideration. See Africa Airline International Ltd Vs Eastern and Southern African Trade and Development (PTA) Bank [2003] KLR 140.  In Githaka V Nduiriri [2004] 2 KLR  67 the Court of Appeal  was  clear that the  court, under Rule  4 of the Court of Appeal Rules is vested  with an  unfettered  discretion  to extend time with the only  fetter  being  that it be exercised  judiciously, that it  to say, on sound reason, free from whim, caprice of sympathy and in the interest of justice on the case.

19. In Samiyan Kanr Devinder  Singh V Speedway Investment  Ltd and Another [2014] e KLR  the Court of  Appeal stated that the  factors  to be considered  in extension  of time to file  an appeal out  of time are:

1) Period  of delay.

2) Reason for the delay.

3) Possibly, the chances of the appeal succeeding if the application is granted.

4) The degree of prejudice to the respondent if the application is granted.

5) The effect of the delay on  public administration  of justice;

6) The importance of compliance with time limits in litigation.

7) The  resources  of the parties;

8) Whether the matter raises   issues of public importance.

20. The above decision relied on Delphis Bank Ltd  V Recco Builders  Ltd and  Another [2005] 346 for  the propositions that   a defaulting  party is not  precluded  from seeking leave to regularize the notice of appeal and  where  there is demonstration that despite the delay, the applicant  had been  diligent; that  the intended  appeal has merit  and the extension of time sought  would not  prejudice the respondent, the  court can still exercise  its discretion in favour of such an applicant.”

21. Applying  the above  guiding  principles  to the rival positions   argued  in this application, it is  not disputed  that there  was  delay in filing  the intended  appeal from the ruling  of 27th March 2015  made by the trial court  hence  this application.  The applicant’s explanation for the delay is as borne out in the contents of his supporting affidavit and documents exhibited.  In  the proceedings of the lower court, it is  clear that  indeed   on 26th September  2014, the Honourable Teresia Ngugi Senior Resident  Magistrate  reserved  the delivery  of the ruling on notice after  parties  had submitted  on the same  date by way of written  submissions as ordered  on 19h August  2014.

22. Then in 27th March 2015, the  record shows  as follows :

27th March 2015

Before Honourable I. Gichobi (Ms) RM

Court Assistant - Nanzushi

Matter coming for ruling.

Court- Ruling delivered as per typed copy.

Honourable I. Gichobi (Ms)

Resident Magistrate

27th March 2015.

23. From the above record, it cannot be denied that there is no evidence of service of a notice of ruling upon any of the parties to the dispute.  The trial  magistrate  was all alone  with her  court assistant when she  delivered  the ruling and  never even mentioned that  parties  were absent or that  they were served with notice as expected by the proceedings  of  26th September  2014.  Neither is there any correspondence notifying the parties of the delivered ruling after such delivery.

24. The applicant’s counsel on the other hand has exhibited letters  dated  4th February  2015  addressed  to the Executive Officer  of the court inquiring  as to when the ruling   would be  delivered to enable  them attend court but there  was no response, albeit the said letter  was also  copied to Honourable  Nchoe, Magistrate.

25. The applicant’s  counsel wrote  on 18th April 2015  to the Chief Magistrate  copied  to the Honourable  Nchoe  and Executive Officer, Milimani  Commercial  Courts  asking why there  was  stoney silence  to the inquiry  on the date of  ruling but  again,  there  was no response, although the said  letters  were received by the court.

26. Albeit  the above communication  was not copied to the respondent herein, failure  to do so  would  in no way prejudice  the respondent who  has not stated  in his affidavit  that the himself  received  notice of ruling  or that he  was  notified  that  the ruling  had been delivered after its delivery.  In other words,  the fact  of non communication  as to the delivery of  the  ruling both  before and  after such   delivery  have not  been  controverted  by the respondent  and or the trial court’s  executive  officer.

27. It  therefore  follows  that  albeit  there  was  delay in filing  an appeal against  the  ruling of  27th March  2015, that delay  has been satisfactorily  explained by the applicant  as having been occasioned  by the trial court’s   failure to notify the parties  of the date of  delivery of the ruling, and  therefore  the issue  of inordinate  delay in filing  of this application does not  arise.  That delay, in my view  cannot  disentitle  the applicant to  a relief   of extension of time, as  that would be  frustrating   the course  of justice  in one way  or another  by withholding  exercise  of the court’s discretion in favour  of an innocent  litigant.

28. The  respondent  argued  that the  intended  appeal has no chances  of success  and that there is  no draft  memorandum  of appeal annexed  to the applicant’s supporting affidavit.  I examined the application by the applicant which is in a bundle.  Albeit  his affidavit  does not  annex a Memorandum of  Appeal draft, nonetheless, the  last document  after annexture  JG2  is a memorandum of appeal which sets   out six(6) grounds of appeal.  This court cannot ignore that document which was filed together with this application and which is on record.

29. With   regard to arguability of the intended  appeal, this is not  a mandatory  requirement  but just a  possibility  that the court should  not lock out an arguable  appeal  where the applicant is exercising  his right of appeal.  The general principle is that, an arguable   point need not be one which must succeed.  It should simply be one which warrants full argument and or interrogation by a court of law.  See Stanley Kangethe Kinyanjui V Johny Keter and Five Others CA 31/2012(unreported) where it was held that it is now trite that only one arguable point suffices.  Ground  2 of the intended  memorandum of appeal  dated  31st July 2015  faults  the trial magistrate  for failing  to take notice of the fact that the appellant’s claim is grounded on a duly filed and  taxed Auctioneers  Bill of Costs  whose  certificate of  costs has  never been challenged  by the respondent.

30. In my view, that ground alone  raises  an arguable  point as  to whether  there can be  any defence to a taxed bill of  costs whose  certificate  of taxation has not  been challenged.

31. On  the degree of prejudice  likely  to be occasioned to the respondent  advocate if leave to appeal  out of time  is granted, the  respondent’s argument  is that “ if  the applicant had instead of filing this  application set  down  the suit  in the lower court for hearing.  It would  have been concluded by now  but that instead, he has  engaged  in unwarranted  applications  and counter  applications at a great  expense  and irreparable  prejudice.”

32. In my view, that statement  does not  disclose or  demonstrate  any prejudice  likely to be  occasioned to the  respondent  if leave to appeal out of time is granted to the applicant  who is  exercising his unfettered  right of  appeal.  I therefore find that   any prejudice, if at all there would be any, likely to be suffered by the respondent can be sufficiently compensated for by an award of costs.

33. On the effect of delay of disposal   of the suit  in the lower court  on the administration  of justice, whereas  this court agrees  that  dispensation of justice should  be expeditious, however, where the  applicant is   aggrieved  by the decision of the lower court  and wishes  to ventilate  his grievance  by way of an appeal, which  appeal, if  successful, is  likely  to  dispose  of the matter in the lower court, he should  not be  blocked  from accessing justice since the wheels  of justice  will not have been  stalled.  It would be extremely unfair to punish the applicant by shutting him out of the judicial process which by itself contributes substantially to that delay.  This court  exists to do justice  to the parties and  it  shall therefore, not send  the applicant  from the seat of  justice  empty handed in view of  the circumstances  of this case.

34. Although  the applicant  did not  seek for  stay of proceedings  in the lower court, in view of my findings  above that  the applicant deserves  extension of time to  file an appeal out of time, I find that  where there is clear demonstration as is in this case, that the  applicant’s proprietary rights  which are  at stake crystallized before the lower court  made a decision refusing to strike out the defence  thereby threatening the intended divestation, it is  only proper that the suit  be preserved  in the first instance  and the proper adjudication be  done after a decision of the appellate  court   one way or the other.

35. For  the above reasons, I am persuaded  that the applicant has  brought himself within the propositions in the case of Delphis Bank Limited V Recco Builders  Limited and  Another [2005] e KLR that  even where  there has  been delay  but there  is demonstration  like in  the instant  case, that the applicant  has been diligent  and that the intended  appeal is not frivolous, and  also considering  that the extension  of time sought would not  prejudice the respondent.  It is only proper that I do exercise my discretion in favour of  the applicant to  extend  the time within  which  to lodge  his appeal out of  time, since sufficient  cause has been shown to warrant the exercise of my discretion in his  favour.

36. In the end, I allow  the applicant’s application/Notice of Motion dated  31st July  2015  and filed on  3rd August  2015 as follows:

1. The applicant is granted Fourteen (14) days from the date of this ruling to file and serve the Memorandum of Appeal upon the respondent.

2. As the proceedings herein are not in an appeal, the applicant to lodge a separate appeal.

3. The proceedings in the lower court shall be stayed until determination of the intended appeal.

4. The costs of this application shall abide the outcome of the appeal as intended.

Dated, signed and delivered in open court at Nairobi this 19th day of September, 2016.

R.E. ABURILI

JUDGE