Otieno & another v BO Agencies Limited [2023] KEHC 23787 (KLR)

Otieno & another v BO Agencies Limited (Miscellaneous Civil Application E273 of 2023) [2023] KEHC 23787 (KLR) (23 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23787 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application E273 of 2023

DKN Magare, J

October 23, 2023

Between

Susan Otieno

1st Applicant

Lelo Solutions Limited

2nd Applicant

and

BO Agencies Limited

Respondent

Ruling

1. This is a Ruling on an Application dated 28th September 2023 seeking the following Orders:i.Spent.ii.Spentiii.That this Honorable Court be pleased to extend time for filing Appeal and grant leave to Appeal out of time against the ruling delivered on 17th August 2023 in Mombasa SCCC No E114 of 2023. iv.Thant upon grant of prayer 3, the Court be pleased to stay execution of the Ruling delivered on 17th August 2023 in Mombasa SCCC No E114 of 2023.

2. The Application is supported by the Affidavit of Susan Otieno and the Grounds stated inter alia as follows:i.The Court entered default judgment against the Applicant in Mombasa SCCC No E114 of 2023 on16th May 2023. ii.The Applicant applied vide the Notice of Motion Application dated 16th July 2023 seeking to set aside the Default judgement and permit the Applicant to defend the suit.iii.The Applicant’s main ground was that she was not served with the summons and pleadings that calumniated into the default judgement.

3. The Respondent filed Replying Affidavit dated 3rd October 2023 in which it was stated inter alia that:a.The Application was an abuse if the Court process as a similar Application was filed in the trial court.b.The Judgement was entered on 16th May 2023 more than 5 months ago and the Applicant was guilty of indolence in filing this Application.c.The execution already took place and the goods were advertised on 26th September 2023. d.The goods were incurring storage charges.

Parties filed submissions 4. The Applicant submitted that the Application was meritorious on the strength of Section 79G of the Civil Procedure Act stipulating that Appeal to the High Court be filed within 30 days if the decision appealed from.

5. The Applicant submitted that they had fulfilled the conditions set out in the case of Thuita Mwangi v Kenya Airways Limited (2003) KLR on applications to enlarge time that the Applicant has to satisfy the Court based on the length of the delay, reason for the delay, chances of success of the Appeal and the extend of prejudice to the Respondents.

6. It was this submitted that the previous counsel failed to notify the Applicant of the delivery of the Ruling dated 17th August 2023 and that no prejudice would be occasioned to the Respondent who had custody if the goods following attachment.

7. On the part of the Respondent, it was submitted that the Application was an abuse of the court process. Counsel also submitted that the delay of 5 months on the part of the Applicant was inordinate and unexplained. It was further submitted that the Respondent would suffer insurmountable prejudice as the goods were incurring storage charges of Kshs 3,000/- per day.

Analysis 8. I am unable to understand how, there is a 5-month delay for an application whose ruling was in August. The delay between the time of judgment and making the Application is irrelevant for purposes of this application. That will be a consideration in the main Appeal.

9. The issues for this Court’s determination is whether the Applicant has met the legal threshold for an order to extend time within which to Appeal and stay execution of the Ruling delivered on 17th August 2023 in Mombasa SCCC No E114 of 2023.

10. The jurisdiction to extend time for filing appeal is set out under Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides doth:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty 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.”

11. This Court’s discretion in enlarging appellate time has also been set out in a number of judicial authorities.

12. This being an appeal from the decision of the small claims court, the court is aware of its remit within the confines of section 38 of the Small Claims Court Act. This is whether it is handling an appeal or an application to extend time. Section 38 of the small claims court act provides as doth: -“38. (1)A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.(2)An appeal from any decision or order referred to in subsection (1) shall be final.”

13. In the case of Mombasa County Government v Kenya Ferry Services & another (2019) eKLR, at paragraph 25, the Supreme Court held that;“25]Concerning extension of time, this Court has already set the guiding principles in [ the] Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR [case] as follows:“...it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.we derive the following as the underlying principles that a Court should consider in exercising such discretion:1. 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;2. A party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;3. Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;4. Where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents, if extension is granted;6. Whether the application has been brought without undue delay; and7. whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied]

14. In the case relied upon by the Applicant, Thuita MwangivKenya Airways Ltd [2003] eKLR, the court set out the conditions for grant of extension of time to be premises on the following:i)The period of delay;ii)The reason for the delay;iii)The arguability of the appeal;iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;v)The importance of compliance with time limits to the particular litigation or issue; andvi)The effect if any on the administration of justice or public interest if any is involved.

15. I have perused the Application and the evidence attached in support thereof. I note that the impugned Ruling was delivered on 17th August 2023 and this Application was filed under urgency on 28th September 2023. The Applicant is indeed out of time for the Appeal.

16. The Memorandum of Appeal should have been filed by 16th September 2023. There is thus a delay of 11 days before making of this Application. The main reason given is that the former advocate did not communicate the outcome of the Ruling.

17. The period of delay is 11 days. The Applicant took steps to appoint other advocates who made this application. The court was informed that there is another application for extension for stay in the Small Claims Court. This may not be of concern to the court as the court below will definitely deal with it. It is not before me today.

18. This is premised on order 42 rule 6 (6) of the Civil Procedure Rules, which provides as doth: -“(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”

19. The order for stay can be made to this court whether or not the same has been allowed or dismissed by the court below. The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out, unless they drive themselves out of the seat of justice.

20. I have perused the filed court pleadings and found no evidence that the application is an afterthought or how the same is intended to abuse court process. Further, it is the Applicant’s case that delay was occasioned by the advocate’s failure to communicate the Ruling. The excuse is plausible and I believe the same.

21. I am happy that the excuse given is not those cock and bull stories. It takes cognizance the intelligence of the court and the respondent’s counsel. In the case of George Arab Muli Mwalabu v Senior Resident Magistrate Kangundo & 2 others; Festus Mbai Mbonye (Interested Party) [2019] eKLR, Justice G V Odunga, stated as doth on this issue: -“35. Parties who approach the seat of justice ought to base their application on facts which they believe are true. A party who sets out to twist the facts the way the applicant has done herein is clearly contemptuous of the court and I can do no better than to quote the case of Matatiele Municipality & others v President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) that:“in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…”36. I associate myself with the lamentations of Madan, J (as he then was) in N v N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

22. Courts have over time excused parties where such delay is not inordinate as is in this case and even in cases where there is inordinate delay, depending on the circumstances of each case and reasons for the delay, courts have accorded parties an opportunity to be heard on appeal. Furthermore, there is no evidence to demonstrate what prejudice the Respondent will suffer if the applicant is granted extension of time.

23. In the case of Stecol Corporation Limited v Susan Awuor Mudemb [2021] eKLR, the court stated as follows:“26. There is no evidence that the application is an afterthought or how the same is intended to abuse court process. Further, it is not uncommon for clients to instruct their counsel who procrastinate on filing court processes and only wake up when time for such filing has elapsed. Courts have over time excused parties where such delay is not inordinate as is in this case and even in cases where there is inordinate delay, depending on the circumstances of each case and reasons for the delay, courts have accorded parties an opportunity to be heard on appeal. Furthermore, there is no evidence to demonstrate what prejudice the Respondent will suffer if the applicant is granted extension of time.Albeit the Respondent maintained that no sufficient reason was given for the one day lateness, in Belinda Mural & 9 others v Amos Wainaina [1978] eKLR, the Court of Appeal – Law JA, citing other cases such as Shah H. Bharmal & Brothers v Kumar [1961] EA 679 where it was held that:“Mistakes of a legal adviser may however amount to ‘sufficient cause under the East African Rule.”And in Hamam Singh & others v Mistri [1971] EA 122 where it was held that:“….in relation to applications to this court for leave to appeal out of time, it has been held that mistakes of a legal advisor may amount to sufficient cause but not inordinate delay on his part...”

24. Therefore, my object is the achieve justice for both parties. In Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 others [2015] eKLR, the Court of Appeal articulated that:“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we are wont to say in Kenya, from Wanjiku, by dint of Article 159 (1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.” (emphasis added).

25. I am persuaded that the Appeal is arguable. The attached draft Memorandum of Appeal is not idle. The subject matter relates to international commerce. It is doubtful whether, this was a small claim. I am unable to shut the Applicant out of the seat of justice.

26. This is because the issues of jurisdiction are Sacrosanct. Not every matter where there subject matter is below a million shillings is a small claim. It is important that the court gets to hear the question of the setting aside and satisfiy itself that the lower court exercised its discretion judiciously.

27. I am alive to the postulations regarding the aspect of discretion, which was settled in Mbogo &anotherv Shah [1968] E.A. 93 at page 96, where the legendary Sir Charles Newbold P elucidated the point in the most poignant way as hereunder: -“...a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice….’’

28. The Court of Appeal in Kamlesh Mansukhalal Damki Patni (supra) agreed with the sentiments of the learned Judge of the High Court and I concur that:“It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint. So far the applicant did not have a chance to file a defence. He sought to set aside that default judgment and that application was dismissed on a date he contents the same was not due for hearing and when he had no notice...”

29. In the case of DT Dobie & Company Ltd v Muchina [1982] eKLR it was stated thus;“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the Court. At this stage, the Court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the Court itself is not usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way. As far as possible indeed, there should be no opinions expressed upon the Application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks right.” (emphasis mine)

30. In Simon Kirima Muraguri & another v Equity Bank (Kenya) Limited & another [2021] eKLR, justice E. C. Mwita, had this to say: -“21. The jurisdiction to strike out pleadings is discretionary and must be exercised judicially. In Postal Corporation of Kenya v I. T Inamdar & 2 others [2004] 1 KLR 359, the court stated that the law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.

31. Though the above decisions relate to striking out, thy act on the same principles. The delay is only 11 days. The delay is excusable. Further storage charges are not real an issue. They can be ameliorated by an order of the goods being released on running attachment.

32. In the circumstances, I am inclined to allow the Application dated 28th September 2023.

Determination 33. The upshot of the foregoing is that I allow the Notice of Motion dated 28th September 2023 as follows:a.The Memorandum of Appeal shall be filed within 7 days from today.b.The Applicant to file written submissions within 7 days from today.c.The Respondent shall file a Response within 7 days of service.d.The Main Appeal shall be fixed before the Court for directions upon filing.e.There be stay of execution of the Judgment and decree given in Mombasa SCCC No E114 of 2023 pending the Hearing and Determination of the intended Appeal.f.The attached be released on running attachment pending Appeal.g.The parties should address the court on the auctioneer’s charges at the time of arguing the main Appealh.The Applicant shall deposit in court security of Kshs 100,000/= within 30 days, in default the order for stay to lapse.i.I have perused the court file in the court below, for reasons to be indicated in the main Appeal, I find that it is necessary that there will be stay of further proceedings in the small claims court till the high court delivers its judgment in the main Appeal.j.Mention on 13/11/2023 for directions on the main appeal.k.Costs of 15,000/= to the Respondent payable within 30 days in default execution to issue

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 23RD DAY OF OCTOBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE