[1999] KECA 199 (KLR)

REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: OWUOR, J.A (IN CHAMBERS) CIVIL APPLICATION NO. NAI. 249 OF 1998

BETWEEN

1. GEORGE ROINE TITUS )

2. DANIEL NDICHU ) ..........................APPLICANTS

AND

JOHN P. NANGURAI (As Personal Representative

of Harry Lewis Nangurai Deceased) .........RESPONDENT

(Application for extension of time to file Notice and Record of Appeal out of time from Judgment and Decree of the High Court of Kenya at Nairobi (Hon. Justice Bosire) dated 30th October, 1996

in

H.C.C.C No. 1038 of 1974)

********************* R U L I N G

By an application dated 22nd day of October, 1998 and stated to be brought under rules 4 and 42 of the Rules of this Court, the applicants George Roine Titus and David Ndichu, plaintiffs in the superior court seek the following orders:-

1. "That the time for filing and serving a Notice of Appeal herein be extended for a period of 14 days.

2. That the time for filing and serving the record of appeal be extended for a period of 21 days.

3. That such other and or further relief be granted as this Honourable Court might deem fit and just.

4. That the costs of this application be costs in the intended appeal".

The grounds upon which the above orders are sought are that the appellant had previously filed Civil Appeal No. 259 of 1997 on 4th of November, 1997 against the judgment of Bosire J. (as he then was) delivered on 30th of October, 1996 and by which he dismissed the applicants' claim. The suit land is a valuable piece of property measuring about 74 acres situated in Ngong and valued about Ksh.15 million. By virtue of the said judgment, the respondent Harry Lewis Nangurai, to use the learned Judge's words "got a windfall of the suit land on the basis of custom, which to say the least was selfishly employed for personal gain".

The applicants' appeal was struck out by this Court on 22nd of October, 1998 on the ground that it was incompetent having been filed 20 days out of time. At the time when the appeal was struck out the applicants attention had been drawn to the fact that the same had been filed out of time by an application that the respondent had filed way back on 26th day of June, 1998. The applicants' chose to do nothing except file an application for extension of time three days prior to the hearing of the appeal.

This Court refused to grant the applicants' request for their application to be heard first and struck out the appeal.

To my mind that was the end of the matter and it would serve no purpose now to take that factor into consideration in excising my discretion as to whether or not to extend the time as now requested.

The present application was then filed immediately seeking to rectify the position in order to institute the appeal afresh, an appeal that the applicant states he is anxious to prosecute and pursue with due diligence, if granted the extension of time.

It is not disputed that the applicant was 20 days out of time in filing the appeal that was struck out notwithstanding the fact that he had promptly, five days after the decision filed a Notice of Appeal and requested for the proceedings for the purpose of preferring an appeal. The reason that counsel gives for the delay in the affidavit sworn in support of the application is that:-

"The delay in filing the said Civil Appeal No. 257 of 1997 was an unfortunate mistake on our part which was substantially contributed by the certificate of delay which misled us".

Mr. Wandabwa counsel for the respondent would have none of this. His argument was that the certificate of delay annexed to the affidavit sworn by counsel in support of the application could not have misled any advocate, leave alone Mr. Machira, such a senior counsel. According to him this is a case where counsel simply did not bother to read the relevant rule. (Rule 81(i) of the Rules of this Court) and take the necessary step within the prescribed time. In his view, the rule is unambiguous and needs no complicated legal interpretation. The reason given by Mr. Machira amounts to nothing more than failure on his part to file his appeal within 60 days from the date of the decision but excluding 304 days as certified by the registrar up to 15th of August, 1997 when he was notified that the proceedings were ready for collection. The reason for the delay according to Mr. Wandabwa has not been explained nor has any material been put before me to enable me to exercise my discretion in favour of the applicant.

Mr. Machira has maintained that what happened in his chambers was a genuine mistake. Whether he misread the rule or not, he went ahead and filed the appeal 20 days after the prescribed time.

Looking at the certificate of delay, it is not difficult to see where Mr. Machira's mistake stemmed from. The certificate clearly states that the request was for "Certified Copies of the Proceedings" as opposed to mere copies in terms of the rule which were ready as far back as 15th August, 1997, although not certified as demanded by counsel. Mr. Machira admits that he was wrong, he committed the mistake. His mistake amounted to violation of the rule.

There is no dispute as to this Court's wide powers and its unfettered discretion under rule 4 of the Rules of this Court. However, as repeatedly held, the principle that guides this Court is that the discretion must be carefully and judicially exercised in order to do justice for both parties.

I am unable to accept Mr. Machira's submission that after the 1984 amendment to the rule an extension of time is not automatic but a discretion vests in the Court and which like all decisions can only be exercised judiciously and to meet the ends of justice.

However, I am satisfied that there are many other decisions of this Court after the amendment which lend support to the view that a mistake is a mistake whether or not it originates from an advocate's ignorance or negligence and so long as it is genuine it does not disentitle an applicant to the discretion of the Court being exercised in its favour.

As was said by Madan J.A (as he then was) in BELINDA MURAI AND NINE OTHERS -VS- AMOS WAINAINA IN CIVIL APPLICATION NO. NAI. 9 OF 1978 (Unreported):

"A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interest of justice so dictates. It is known that courts of justice themselves make mistakes which is politically referred to as erring, in their interpretation of law and adoption of a legal point of view which Courts of appeal sometimes overrule. It is also not unknown for a final Court of Appeal to reverse itself when wisdom accumulated over the course of years since the decision was delivered so required. It is all done in the interest of justice".

Subsequently as was said by Lakha, J.A in GRINDLAYS BANK INTERNATIONAL (K) LTD. & ANOTHER -VS- GEORGE BARBOOR CIVIL APPLICATION NO. NAI. 257 OF 1995:

"Oversight has been defined to mean the omission or failure to see or notice. It is inadvertence whilst ignorance may not be equated to mistake as held by this Court in BABER AUBHAI MAWJI -VS- SULTAAN HASHAM LALJI AND 2 OTHERS CIVIL APPLICATION NO. NAI. 236 OF 1992. (Unreported) mistake may and normally does arise through negligence".

I have carefully considered the submissions made to me by both counsel. I am satisfied that counsel's mistake was a genuine one. This matter has been in this Court for the last 25 years but most probably for no fault of the applicant. Also that the property being litigated over is a valuable property and as agreed by both Counsel the applicants are people of no other substantial means. They have in all these years diligently pursued this matter. All these goes to show the importance that both parties attach to the suit land as a substantial property indeed.

It is on this basis that I have come to the conclusion that counsel's mistake as stupid as it was should not disentitle the discretion of this Court being exercised in the applicants' favour. It is only fair and just that the application be allowed which I hereby do. It is also a principle of the administration of justice that in so far as possible disputes between litigants should be decided on their merits.

My decision on the Motion before me therefore is that, the same is hereby allowed and that the Notice of appeal shall be filed within five days from today's date. Thereafter the record of appeal shall be lodged within fourteen days from the date of filing of the Notice of Appeal.

The applicants will pay to the respondents costs of the application in any event.

Dated and delivered at Nairobi this 14th day of May, 1999.

E. OWUOR

...............

JUDGE OF APPEAL

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

DEPUTY REGISTRAR