Monicah A S Ougo & Lebuneei Diversity v Samson Robert Misango [2015] KEHC 1321 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO.  385 OF 2015

MONICAH A.S. OUGO ……………………………………………..1ST APPLICANT

LEBUNEEI DIVERSITY……………………………………………..2ND APPLICANT

VERSUS

DR. SAMSON ROBERT MISANGO………………………………..RESPONDENT

RULING

This ruling  determines the applicant’s  application dated 7th September  2015  brought  by way of Notice  of Motion  and  filed on  8th September 2015.

The application is brought under the provisions of Sections 1A, 1B, 3A, 63(e) and 89 of the Civil Procedure Act, Order 51 Rule 1 and Order 50 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law.  The applicant’s Monicah A.A. Ougo and Lebuneei Diversity seek from this court orders:

Spent

That status quo on execution  of decree  issued  in Milimani RM’s CC 2229/2012  be maintained  and Fantasy Auctioneers be restrained from taking possession of the 2nd applicant’s movable assets pending the hearing and determination of this application

That leave be granted extending time for the filing of an appeal challenging the said decision of the subordinate court.

Costs of the application

Any other relief that the court may deem fit to grant.

The application is predicated on the grounds on the face of the notice of motion among them, that  failure  to file appeal in time was inadvertent  and attributable mistake  of counsel  who did not  advise  the applicants  of the fact  of judgment  which failure  is profoundly  regretted. That  unless this court intervenes the applicants shall suffer irredeemably. That it is in the interest of justice to grant the reliefs sought.

The application is further supported by three affidavits. In the affidavit sworn by the 1st applicant Monicah Machani, she deposes that she is the landlord on premises on LR No.  Nairobi/Block/72/543 and the 2nd applicant is her  agents, which fact  was known to the  respondent Dr Samson  Robert Misango  and that  she learnt of  judgment  in CMCC 2229/2012  on 7TH April 2015 when auctioneers proclaimed its  moveable  assets on 1st September  2015  in a tenancy dispute and that she  intends to appeal against  the said  entire decision.  Further, that her failure to file the appeal in time was not deliberate as she was not advised by her advocate.  The deponent avers that they have a strong appeal with good chances of success as shown by the annexed draft.

Further, that if execution is levied they will suffer irreparable prejudice and that the respondent shall not suffer any prejudice which cannot be remedied by costs.

In the affidavit of Ezekiel Mutai Kihenya it is deposed that he is the Managing Director of the 2nd applicant and the rest of the depositions are similar to the ones deposed by the 1st applicant.

The application is also supported by the affidavit of miller Wanjala Bwire, advocate for the applicants who deposes that the matter was previously handled by his colleague in the same firm Mr Syphurine Mayende.  Further, that the suit  in the lower  court was  heard on  5th March 2015  where the respondent  and  1st applicant testified  but that  the  court declined to allow the  2nd  applicant to testify and directed  the  advocate  to appeal if  he wished  and Mr Mayende  retired to formulate  grounds of appeal but changed  his mind, opting  to appeal  against  entire  judgment  should the judgment be unfavorable.

Further, that the judgment was delivered on 7th April 2015 but they inadvertently did not know of the said date.  The rest of the depositions are similar to those deposed by the 1st applicant.

The respondent Dr. Samson Robert  Misango  filed his grounds of  opposition  on 14th September  2015  contending  that the  applicant ought  to deposit  kshs 238,000 as security; and   that mistake  of an advocate is not a  ground to grant the orders sought.

The application was canvassed on 14th September 2015 by way of oral submissions.  Mr Miller  Bwire  advocate for the  applicants submitted, reiterating the  contents  of the application, grounds  and the  three supporting affidavits  one sworn by  himself the other by the Monicah Machani and  the last  one by Ezekiel Mutai Kethenya all whose  depositions  I have high lightened  above.

Mr Bwire  emphasized  that failure  to appeal against  the ruling  disallowing  the 2nd applicant to  testify was an error on their  advocate’s part  whereas delay in filing appeal against  final judgment  was occasioned by his office and an  inadvertent  mistake  not intentional and that since the applicant deserve  an opportunity to be heard, mistake by their counsel  should not prejudice a client and as their  advocates, they apologize  for the mistake.  He also submitted that the applicants were ready to furnish security.

Professor  Wangai opposed  the application relying on the grounds of opposition  and urging  the court to order  that kshs 238,500  decretal sum be deposited  in court within  10 days to dispose  of the issue of execution .

On the matter of enlargement of time, counsel for the respondent submitted that the intended appeal relates to the order declining to allow the 2nd applicant to testify and on the final judgment.  He submitted that the applicant was given 30 days to appeal but the advocate decided not to appeal, which fact came before judgment.  In his view, it is an abuse of the court process to combine the two decisions together and that no appeal lies against the ruling and further, that the intended appeal has no merit.  Professor Wangai submitted that mistake of an advocate is not a ground of appeal but reason for delay in filing an appeal within the prescribed period and that the client has a remedy against the advocate’s professional negligence.

In a rejoinder, Mr Bwire submitted that the lower court proceeded to   write a judgment even after telling the parties to appeal against its ruling.  He further submitted that the draft Memorandum of Appeal sets out grounds of appeal.  Further, that they  had conceded  mistake which should  not deny  their clients  the right to  be heard.

I have carefully considered the application by the applicant, grounds thereof , supporting  affidavits, grounds of opposition  and submissions  by both counsels  for the parties   in favour of   and  against the  application.

The issue for determination  in my view, is whether  the applicants  have satisfied the conditions for grant of-

Enlargement  of time  within which  to file appeal against

Ruling declining to allow the 2nd respondent to testify on 23rd May 2015.

The judgment delivered on 7th April 2015.

Stay of execution of decree in the lower court pending hearing and determination of the intended appeal.

On whether  this court should enlarge  time within  which to file an  appeal from the ruling  and  the judgment, first and  foremost, is  that the applicants  were granted  leave by the lower court  to file an appeal  against  a ruling of the trial court, but they did not.  That  being so, then they  squandered  their  opportunity  which lapsed and they  cannot be heard to be seeking  leave  of this court to enlarge time.  The issue is not about enlargement of time.  If that were the case, then such enlargement  would have been sought  before the court that made  the order.  That particular order was only appealable with leave  of that court and the court  did grant such  leave but  the applicants never utilized  the leave given.  So, they cannot seek enlargement from this court at this stage.

On the second limb of enlargement of time within which to file an appeal from the  judgment of the trial court, the relevant  applicable  law is  Section 79G, of the Civil Procedure Act which provides:

“ 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 preparation and  delivery to the appeal 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.”

The  supreme  Court in the case of  Nicholas  Kiptoo Arap  Korir  Salat V IEBC  & 7 Others (2014) e KLR  laid down seven  principles  for a court to be  guided by in  considering  extension of time for  filing an  appeal, while acknowledging that the  discretion  to extend time lies with the court seized of the matter and that it is incumbent  upon the applicant to  sufficiently  explain the reasons  for the delay if any, in making the application for extension  of time, and whether  there are  exterminating  circumstances  that can  enable  the court to exercise  its discretion  in favour of the applicant.  The principles are:

Extension  of time is not  a right of a party.  It is  an equitable  remedy that is only available  to a deserving  party  at the discretion of the court:

A party  who seeks  for extension  of time has  the burden of laying  a basis  to the satisfaction of the court;

Whether  the court should  exercise  the  discretion to extend, is a  consideration to be made on a case to case basis;

Whether there is a reasonable reason for the delay.  The delay should be explained to the satisfaction of the court.

Whether  there  will be any prejudice  suffered  by the respondent  if the extension is granted:

Whether  the application has been brought  without undue delay; and

Whether  in certain cases, like  election petitions, public interest should be  a consideration for extending time.

Section 79G of the Civil Procedure  Act  contemplates  a situation where a party  had a right of appeal but did not, for good  reasons, exercise  that right  within the  statutory  stipulated  period  and therefore  seeks out the court’s  leave to enable  them exercise  that right, despite  the time lapse.

Applying  the Nicholas Kiptoo case principles  to this case; as to whether  the application  was filed without  unreasonable  delay, and or  whether the delay  has been explained to the  satisfaction of the court, the record  shows  that judgment  was delivered  on 7th April 2015.  The application was filed on 8th September  2015  after  the decree  holder in CM CC 2229/2012  had put in motion the process of executing  decree to recover  decretal sum of kshs  192,355.  The delay  was of 4 months  from the date  of judgment  in the lower court.

The case  in the lower court  proceeded  to hearing  interpartes  with all parties  thereto being  ably represented  by advocates, what  is  given as reasons  for failure  to file an appeal within  time is some verbose  imprecise  statement  replicated all over  in the certificate  of urgency, grounds and supporting  affidavit that:-

“ Failure to file  the Memorandum of Appeal  in time  was inadvertent, since the last  proceeding on 23rd May 2015, when the  court declined  the application for the 2nd applicant  to be heard in court, the counsel acting  and appearing  for the applicants  on record  was given  30  days to appeal  the rejection to hear a  party, and in the stated  scheme  of  events  he sought  to frame  issues  for  appeal but decided  against it instead  opting  to  have the  matter concluded  so that in event of unfavourable  judgment  an appeal may be  cumulative  on all issues.  Regrettably counsel, sat awaiting  for occasion  or notice  of judgment  but he did  not receive  any.  Instead  it is  the applicants who informed  counsel of the event of  judgment  when  they were proclaimed  on 1st  September  2015.  Failure  to  file the Memorandum of Appeal in time  is therefore attributed  to mistake  of counsel  representing  the applicants then,  for not  advising  the applicants  of the fact of  judgment  and is profoundly regretted”.

What  I gather  from the  above  lengthy factual  statement  of the  applicants is that  the advocates  for the applicants  did not attend  court on the judgment day after the last  date of hearing  of the case.  Further, that the said advocates therefore  expected  to be served  with notice  of judgment.  Third, that they  did not bother to  establish on their  own accord from the court, whether  or not judgment  had been delivered, 5 months  down the line and  last, the applicants  too did not  make any inquiries  as to the position of their case from their erstwhile  advocates.

In my view, the delay in filing this application is unreasonable.  The applicants together  with their advocates went to slumber  after the matter was heard.  There is  no reason why the applicants  did not  bother  or at all for 5 months, to make  any enquiries  from  their advocates on the position  of their  case.  Further, there is no admission  by the advocates that  they advised  their clients  to go and  wait  for  communication on their case, and  never  to make any inquiry.

It was the primary duty of the applicants to constantly  get in touch with their advocates  after the case was   heard and  concluded, to know the outcome and way forward.

I am fortified on this  point by the decision  in the case of Savings  & Loans  Limited  V Susan Wanjiru Muritu Nairobi  Milimani HCC  397/2002 where  Kimaru J expressed  himself thus:

“ Whereas  it would constitute  a valid  excuse  for the defendant  to claim that she had  been let down  by her  former advocate failure to attend  court on the date the  application was fixed  for hearing, it is  trite that  a case belongs  to a litigant  and not  to her advocate.  A litigant  has a duty  to pursue  the  prosecution  of his or her case.  The court cannot set aside  dismissal  of a suit  on the sole ground  of a mistake by  counsel for  the litigant  on account of such  advocate’s  failure to attend  court.  It is  the duty of  the litigant  to constantly check with the advocate the progress of her case.  In the present  case, it is apparent  that if the  defendant  had been a diligent litigant, she would have been aware  of the  dismissal of  her previous application for  want of prosecution soon after the said dismissal.  For the defendant  to be prompted to action by the  plaintiff’s determination to execute the  decree issued  in its favour, is an  indictment of  the defendant.  She  had been indolent and taking into  account her past conduct  in  the prosecution of the application  to set aside  the default  judgment  that was dismissed  by the court, it would be a traversity of justice  for the court  to exercise  its discretion in favour of such a litigant”.  Emphasis  added.

I fully  agree with  the above holding and add  that it is not  sufficient  for a party  to simply blame  the advocate  but must  show tangible  steps  taken by him or her  following  up the progress of  his  or her matter.  From the applicants’ own supporting  affidavits, it is clear  that they  knew how  the case progressed  to hearing  wherein  the 2nd applicant  was denied leave to  testify and leave granted  to him to lodge  an  appeal, which appeal was never  filed.  The matter  was then slated for  judgment on 7th April 2015.  No explanation is given why there was no attendance  on the part of the  applicants or their advocates for judgment.  There is a  cloud of doubt  as to why there  was no attendance.  The explanation that the  defendant’s/applicant’s  counsel expected  a notice of judgment  to be served on them cannot  be accepted  by this court, as no notice of  judgment  was required where the  judgment date was admittedly given  in court after  the full hearing and the case defended.

Secondly, as the matter proceeded to hearing  interpartes, the requirement for notice  of entry of judgment  is not available  to the applicants.  The requirement for notice of entry of judgment  is only where judgment in default of appearance  or defence has  been entered  against the  defendant, and execution has to be effected, by payment, attachment  or eviction.  Such notice  of ten days  must  be given to the defendant and  served personally or at  the address of  service and a copy of the notice  filed with the first application for execution.

That is not the case here, where  it is  acknowledged  that the suit in  the subordinate court proceeded  to hearing interpartes.

In the Court of Appeal decision of  Aviation  Cargo  Support Ltd V St Mark Freight  Services  Ltd CAPP 98/2013,the Court of Appeal in determining  an application to file  and serve a record  of appeal out of time  stated:

“  The order  whether  or not to grant  extension of time or leave to file and  serve record of appeal out of time is  discretionary.  Such discretion is exercised  judicially with  a view to  doing  justice.  Each case  depends  on its own  merit.  For the court to  exercise  its discretion  in favour of an applicant, the latter  must  demonstrate to the  court that  the delay in lodging  the record  of appeal is not inordinate  and where  it is inordinate  the applicant must give plausible explanation  to the satisfaction of the court why it  occurred and what steps the applicant took to  ensure that it  came to court  as soon as  was  practicable.

In the normal vissitudes of life, deadlines will be missed even by those who  are knowledgeable  and zealous.  The courts are  not blind  to this fact.  When this  happens, the reason why  it occurred  should be  explained  satisfactorily  including  the steps  taken  to ensure  compliance  with the law by coming to court to seek  extension of time or leave to file  out of time.”

The above principle of law no doubt agrees with the 7 principles set out  in the Nicholas Kiptoo arap Salat  case (supra).  Notwithstanding  the above  valid principles of law, courts have also over time  adopted the principle of the rule of law and  exercised  latitude in their interpretation  of the rules  so as  to facilitate  just determination of disputes on merit and thus  facilitate  access to justice  to ensure  that deserving  litigants  are not shut out of  the judgment  seat and  this court is  no exception.

In other words, in as  much as delay  defeats  equity, the power to enlarge  time being  a discretionary one, that  discretion is slowly being taken  over by the rule of  law that a  party who wishes  to challenge  the decision    of the subordinate  court before  the High Court should not be prohibited  by a delay.  Further, that notwithstanding the unexplained inordinate  delay, the court should consider whether  justice can  still be  served in the  circumstances  of the case.  The  court must  thus take  into account  the principle of  proportionality  and see where  the scales of justice  lie.  The law is  now trite  that  the business of the court, so far as  possible, is to do justice  between the parties  and not to  render nugatory that ultimate end of justice.  The court,  in exercising  its discretion, should always  opt for  the lower rather than the  higher  risk of  injustice (see Suleiman  V Amboseli Resort  Ltd (2004) 2 KLR  589.

In addition, the right of appeal  is a constitutional right which is the cornerstone  of the rule  of law.  To deny a party  that right  would in  essence be denying  them access to justice which is  guaranteed  under Article  48 of the  Constitution and also a denial of the  right  to a fair hearing  as espoused  in Article  50(1)  of the Constitution, which latter  right cannot  be limited.

In Branco Arabe  Espanol V Bank of  Uganda (1999) 2 EA 22, the court held:-

“ The administration of justice should  normally require that the substance  of all disputes should be  investigated  and decided  on their merits and  that errors, lapses  should not necessary debar a litigant  from  the pursuant  of his rights  and unless a lack  of adherence to rules renders the appeal  process difficult and inoperative, it would  seem that the main purpose of  litigation, namely, the hearing  and determination  of disputes, should be fostered  rather  than hindered.”

Further in Phillip Keipto Chemwolo  & Another V Augustine Kubende (1986) KLR 495, the Court of Appeal  was clear that:

“ It must be  recognized  that blunders  will continue to be made from  time to  time and it  does not  follow that  because a mistake  has been made, a party should suffer  the penalty of not having his case determined on its merits.”

This  is not to say that  in every case, a mistake   of advocate would be a ground  for  allowing an applicant’s application.

In this case, I find both the applicants and their advocates did not act diligently.  Nonetheless, they have demonstrated the clearest intention to challenge  the decision of the subordinate  court.  The advocate has owned up and apologized to the court for their lack of vigilance in this matter.  In their view, the intended appeal has overwhelming chances of  success.  Albeit  this court cannot  at this stage  determine  the merits  of the intended  appeal, but  from the annexed  Memorandum of Appeal, I can tell that the intended  appeal is not  frivolous  or an  abuse  of court process.  It is for  those reasons, upon balancing  out  the scales of justice, to accord  the applicants an opportunity to  ventilate their grievances  at the  appellate level that I would  grant  extension of time within which an  appeal should have  been filed.

Furthermore, in my view, no prejudice will be occasioned to the respondent  if the leave sought  is granted, and which  prejudice if any can  be compensated  by an award of  costs.

In addition, this court does not find any reason why the respondent did not execute decree from April 2015 when judgment  was entered and had to wait until 1st September 2015  to proclaim.  There is no evidence  that a  decree of the lower court  was ever  extracted and served to the respondent’s counsel for approval  before  it was signed  and sealed by the  court  for execution as required by order 21 Rule 8  of the Civil Procedure  Rules  which provide in material:-

“…………

Any party  in a suit in the High Court  may prepare  a draft  decree and submit  it or the approval of the other parties  to the suit, who shall approve it  with  or without  amendment, or reject it, without undue delay, and if the draft  is approved by the parties, it shall be submitted to the registrar who, if satisfied  that it is drawn up in accordance  with the judgment, shall  sign and seal the decree  accordingly.

If no approval  of or disagreement  with the draft  decree  is received  within seven days…….

……………

The provisions of Sub Rules 2,3,4  shall apply to a subordinate  court and  reference  to Registrar  and Judge  in the Sub Rules  shall refer  to Magistrate.”

I have cited the  above provisions to indicate that had the decree  been extracted  and exchanged  in good time  with the  applicants counsels, then  the applicants  would have  been  awaken  much earlier.  That omission can nonetheless be cured by extraction of a fresh decree for approval by both parties.

In the end, I allow the prayer seeking for extension of time to file an appeal out of time.  Such time is extended by 15 days from the date hereof and in default, the order herein lapses.

On the prayer for stay of execution pending appeal as intended, the applicable provisions are Order 42 Rule 6 of the Civil Procedure Rules.  There  are three  conditions  therein that must be  fulfilled  by the applicants to  warrant  the exercise of the court’s discretionary power  to order for  stay of execution  of decree pending  appeal.  These are:-

That  the court is satisfied  that substantial loss may result  to an  applicant  unless  the order is  made and

The  application has been made  without  unreasonable  delay;

Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

The burden of  proving that substantial loss  may result  if order of stay is  refused lies on the party who alleges (see Halsbury’s Laws of  England  Vol. 17 paragraph 14; Feisal Amin Jan  Mohammed  T/A Dunya Forwarders V Shami Trading  Company  Ltd(2014) e KLR.

The claim herein is monetary.  There is no deposition by the applicants that if the money is paid out and the appeal if successful, then the respondents will not be in a position to refund the same thereby rendering the appeal nugatory.

The applicants simply stated that they are willing to deposit security.  The respondent’s counsel, professor Kiama Wangai, too commenced from the premises that the sums due must be deposited in court before stay of execution can be considered.

I have seen the copies of warrants of attachment issued to Fantasy Auctioneers.  They claim a sum of kshs 192,355. 20.  The auctioneers also demand a sum of kshs 46,235 as their changes.  It has not been contended that the amount is colossal or that the applicants are in any form of financial hardship to raise that money.  What is contested is the attachment and sale of the 2nd applicant’s moveable assets when, as is alleged, he was only an agent of the 1st applicant, who was the disclosed principal.  In other  words, the 1st  applicant would  rather have her  movables  attached than that of  the 2nd applicant in satisfaction of  decree  which nonetheless is being  challenged.

The second condition is that the application must have been brought within reasonable time.  In  this case, as I have already  pronounced  myself on the issue  of delay, I will not repeat it  here  as it is trite that  the application  was not filed without  unreasonable delay.

As to the deposit of security, the applicants have conceded to that condition as the court may order.  It is therefore left in the discretion of the court to determine whether sufficient cause is shown for the order of stay of execution to be granted pending appeal.

In this case, as the prayer  for stay was  not seriously contested  by the  respondent  who only sought  the  depositing  of the money  in court, I will exercise  my discretion and  grant stay of execution of decree  in the lower court  pending  filing, hearing and determination  of the  intended  appeal conditional upon the applicants depositing  in court a sum of kshs  300,000/- as security  for the due performance  of decree.  The said sums shall be deposited within 21 days from the date hereof and in default execution to proceed as appropriate.

The upshot  of all the  above is  that the  application  is allowed on  both limbs.  As the applicant  came to  court  after an inordinate  delay, costs of the application shall be  borne by the applicants to  be agreed  upon or  taxed and paid before  the intended   appeal is  set down  for hearing in default, execution  to issue for  recovery.

Dated, signed and delivered in open court this 22nd day of September  2015

R.E. ABURILI

JUDGE

22/9/2015

22. 9.2015

Coram R.E. Aburili J

C/A Adline

Mr Mayende holding for Bwire  for the applicant

Professor Wangai  for  respondent

Court – Ruling  read and delivered  in open court as scheduled.

Court – Ruling  to be typed  expeditiously.

R.E. ABURILI

JUDGE

22/9/2015