Margaret Mugure v John Ndungu Gatheba [2014] KECA 443 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(CORAM:   MWERA,  JA (IN CHAMBERS)

CIVIL  APPLICATION NO. NAI 275  OF 2013

BETWEEN

MARGARET  MUGURE….............................................................APPLICANT

AND

JOHN  NDUNGU GATHEBA.…...……………………………….….…...RESPONDENT

(Being an application for leave to file memorandum of appeal and record of appeal out of time in an intended appeal from the Decision, Ruling and  Order of the High  Court of Kenya  at Kericho (Mutende, J.) dated 4thDecember,  2012

in

H.C.C.C.NO.13  OF 2010)

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R  U  L  I N  G

The  applicant  herein filed  the notice of  motion dated  20th   September, 2013  under  Sections  3A,  B of  the Appellate Jurisdiction  Actand  Rules  1(2), 4of this Court’s rules with the prayer that she be granted leave to file her record of appeal out of time.  There were grounds in the body of the application on  which the motion was  premised, the supporting  affidavit,  supplementary affidavit and a replying affidavit, all of which Ms. R. Obaga,  learned counsel for the applicant  referred to in  her arguments.   M/SE.  M.  Juma   & Company Advocates,for the respondent, were served with the hearing notice herein but did not appear.

Ms  Obagatold the Court that  G.  B.  M.  Kariuki, J.as  he  then  was, delivered  the judgment  on 4th  December,  2012  in  the case brought under  the Fatal and Law Reform Acts, claiming damages.   The applicant filed the notice of appeal  on  14th   December,  2012  and  on  the same  date  applied for certified copies of the proceedings.

She went on to state that the proceedings from the High  Court at Kericho were certified on 12th  February, 2013  and the same were collected by her clerk in March, 2013,  on a day she could  not remember, but definitely after the last day to file a record of appeal had expired on/about 6th  March, 2013.   Then the present application was brought some six months later.   The explanation given for this delay was that as deponed  to in her affidavits, the parties attempted to                                                                                                                                                                      settle  the  matter   out  of  Court  when   Ms  Obagadiscussed  some  3  files, including the claim  herein, with the insurance company but the latter declined to settle that claim.  And that her client was also financially challenged but had at last managed  to raise and  pay  into this  Court’s sub­registry  at Nakuru Sh.6,000/= as security  and  followed  that by filing  the record of appeal  – C.A. No.32 of 2013.   The main  point in the memorandum the applicant desires this Court to consider and  rectify in  the award of damages  as currently computed, is that while  the amended  plaint, her evidence­in­chief and by the submissions

by both sides in  the High  Court, indicated that the deceased,  Dennis  Miimbo Onyayo,  earned Sh.700/= per dayas a matatu operator, yet the learned Judge in his judgment had instead based computation of damages under the Fatal Accidents  Act  on a multiplicand (income)  of Sh.700/= per month.    Ms Obaga saw this as an error  on the part of the learned Judge  and  even filed  a review application dated  17th   February, 2012  which  MutendeJ.dismissed, finding that  there  was  no  error/slip   to  be  corrected   as  to  the  regularity   of  the deceased’s income,  whether daily  or monthly, because the court record showed that   the  applicant  had   said   in   cross­examination  that   the  income   was Sh.700/= was per month.   Accordingly, Ms Obagaurged the Court to find  that it was arguable on appeal that indeed  the earned Judge  made a slip  as to the income   of  the  deceased  and   if  this  Court  accepts   that  then   her  client’s award/benefits  could   be    computed to a  larger figure than  the High  Court awarded, and thus justice and fairness would  prevail.

It has been noted earlier that M/SE. M. Juma  & Company  Advocateswere  served  with the hearing notice but did not appeal.   But in  their  replying affidavit they deponed that the applicant had brought these proceedings after a long  and  unexplained delay  and  in  any  event  the application as well as the appeal lacked merit.

It has  been stated time  without number,  in  the decisions  of this Court that it will not assist an indolent, or negligent litigant who fails  to adhere to the timelines  set  to do  a  required thing  or take a  given  step  in  the  course of litigation.   Granting orders to such  an applicant in order to enlarge time within which  he/she   should  do  that  which  he/she   neglected   to  do,  could   only undermine the interests of justice and also prejudice the other party.  However, this Court ought to consider with favour to grant such  orders to an alert and deserving litigant  who,  for some satisfactorily  explained reason, failed  to take the required step  or do the necessary thing.  That this Court does that in  the interest of justice.

In the present matter I perused the amended  plaint, the evidence in­chief and  the submissions of  both parties and  noted  that indeed  the deceased’s income  was therein said to have been Sh.700/= per day.   But in answer in cross­examination the record reflects  the applicant  as  having   said  that that income  was  per month.   And  indeed  in  the judgment  of the High  Court that was the sum  on which the learned Judge  computed damages  under  the Fatal Accidents Act.  So even as the respondent deponed in his replying affidavit that the appeal lacked  merit, it appears that this issue  of income  of the deceased is worth being considered on appeal.   Whether it succeeds or not is not for me to determine at this stage.

What  falls   for  determination   at  this  stage  is  whether  the  applicant deserves  the order to enlarge time  within which to lodge the record of appeal. Or as it has  already been lodged,  to deem the lodged  appeal  as validly lodged considering the circumstances.

In my opinion, the certified copies of proceedings took quite a while  to be furnished.   But because  it was not stated as to when  exactly  the proceedings were collected in March after the last day to file the appeal on 6th March, 2012, had  passed,  it is not possible to say by how many  days the filing of the record was late.  But it is pertinent  to note  that even after the certified proceedings were collected in March, 2012,  the applicant took about 6 months to bring this application.  Ms. Obagaexplained the delay  as deponed  to in  that there were attempts to settle the decrettal sum,  which failed  and the review application to correct the regularity of the income  also failed.

In  the view  of  the foregoing, I  am  minded to accept  that  the delay  in bringing the present application has  been  sufficiently  explained.  It does not appear from the replying affidavit that the respondent will be prejudiced if the sought  orders are granted. He  did  not depone  accordingly,  even  as  I  am inclined  to think that in  the event  the appeal herein succeeds,  there will be a heavier financial  burden  to be borne by the          respondent’s  side  in  terms of the quantum of the award to be computed.  But all this is not for me to remark on at this point.  Both sides will be heard on the point thereby doing  justice in the matter.

In sum  the order sought is granted.  In essence the record of appeal constituting Civil Appeal No.32  of 2013  is deemed validly filed  and  the parties should move to argue it.  Costs in this application will be in the appeal

Dated and delivered at Nairobi this 18thday of July,  2014

J. W. MWERA

………………………................

JUDGE OF APPEAL

I certify that this is

a true copy of the original

DEPUTY  REGISTRAR

/jkc