Patrick Maina Mwangi v Waweru Peter [2015] KEHC 1099 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION NO.  15   OF 2015

PATRICK MAINA MWANGI……………..DECREE HOLDER/RESPONDENT

VERSUS

WAWERU PETER…………………………..JUDGMENT DEBTOR/APPLICANT

RULING

By a Notice of Motion dated 31st August 2015 brought under  the provisions of Sections 1A and 1B,3A,78,75,79G of the Civil Procedure Rules; Order 42 Rules 6(1),(7), Order 50 Rule 5(1) and (2) Order 51  of the Civil Procedure Rules 2010, the applicant  Judgment Debtor Waweru Peter filed an application seeking  from this court  orders:

1. Spent

2. That the court be pleased to grant a stay of execution of the orders issued in Githunguri Civil Case No. 28 of 2012 pending hearing and determination of this application.

3. That  an order  be and is  hereby  issued  for  the enlargement  of time  to enable  the application file  and serve the appeal as had been  directed  by the Honourable  court on 18th day of June 2015.

4. That an order be and is  hereby issued for  the enlargement  of time  to enable  the applicant  deposit  the sum of  kshs  416,435 in an  interest  bearing account  in the joint names of  the advocates  on record.

5. That the court be pleased to grant   a further stay of execution of the orders issued in Githunguri Civil Case NO.  28 of  2012 pending hearing  and determination  of the  appeal against  the ruling made  by Honourable  Wangechi Ngumi  on 6th January 2015.

6. That costs of the application be provided for.

The said application is predicated on the grounds that.

a. Judgment in default of appearance and defence had been entered against the defendant.

b. The decree holder/respondent has extracted the decree and commenced execution against the properties of the judgment debtor.

c. The applicant’s  former advocate  filed an  application dated 8th January 2015  seeking  an order for  stay of execution of  orders issued in Githunguri  Civil Suit No. 28 of 2012  of 6th January 2012  pending  hearing and determination  of appeal against  the said order.

d. A ruling  was issued   by this  court on 18th June  2015  granting stay of execution and that the applicant was  further granted  leave to file and  serve  an appeal within 45 days  of the ruling  and further  deposit  the sum of  kshs 416,435.  In an interest bearing account in the joint names of the advocates on record.

e. That the  applicant’s former advocate  failed to  inform the applicant  about  the progress  of the matter and  consequently  the ruling made  by the court.

f. The applicant having been frustrated by his former  advocates, instructed the  current advocates Kibatia & Company to take over  the  conduct of the matter, who immediately  perused the relevant court file  and established  the position  of the matter.

g. That as a result of lack of communication from the applicants former advocate, the applicant did not comply as per the court’s Ruling issues on 18th June 2015.

h. The applicant is ready and willing to deposit the sum of kshs 416,435 as ordered by the court.

i. That is the orders sought in the application are not granted as a matter of urgency the applicant will suffer irreparable damage and loss.

The application by the applicant is  further  supported by the supporting  affidavit  of the applicant Waweru Peter  sworn on 31st  August, whose  depositions  mirror the grounds  reproduced  herein above.  In addition, the applicant blames  his former advocates for failing  to furnish him with  information/orders of the court right from the lower  court when initially he had been ordered to pay thrown away costs of kshs 15,000/- as a condition for setting aside  the judgment  and allowing  him to file  defence  out of time  hence making  him fail to comply  with court orders  within the  stipulated  time.

That even  after changing  advocates  for purposes of getting better services, the  immediate  former advocates also failed to notify  him of the Ruling of Honourable Mabeya  J made  on 18th June 2015 to enable  him comply  yet  he has all  along been willing to comply with court orders  in order for  him to be heard.

The respondent/decree holder Patrick Maina Mwangi opposed the application.  He filed  a replying affidavit  sworn on 9th September 2015  deposing  that the  applicant  was given sufficient  time to  deposit   the money in a joint account  but he intentionally refused to do so. the respondent  denied  that the applicant was  not aware of the court ruling  of 1st June  2015, having instructed  his former advocate  to negotiate  the case amicably outside court.

The respondent accuses the applicant of persistently failing to obey court orders including one dated 7th July 2014 in the lower court for payment of thrown away costs and filing of defence within 7 days.

Further, the respondent deposes  that  there is  no evidence or professional negligence on the part of the  applicant’s  former advocates otherwise  the applicant would  have sued his said former advocate for  damages  and that the application  is only  intended  to delay him from enjoying  the fruits of his judgment.  It  is further deposed that there is inordinate  delay in bringing  this  application by the applicant and that the  allegation  that he  did not  know of  the ruling is false   since he  instructed  his former advocate to file an appeal on 8th June 2015  hence he had not come to court  with clean hands and  therefore he does not  deserve the discretionary orders  of the court.

The application was certified to be heard during the vacation.

Parties appeared before me on 14th September 2015 and canvassed the application orally.

Miss Kimachia counsel for the applicant  submitted  in support of the application, relying on the grounds  and the  client(applicant’s) supporting affidavit, adopting  all the said  grounds and  depositions, together  with  the annextures  to the  affidavit  urging  this court  to grant the applicant enlargement  of time within  which he  should comply  with the orders of Honourable Mabeya  J made  on 18th July 2015.  She implored  the court  to consider  that her client  has all  along  been willing  to comply with court orders  but his former  advocates  have  been frustrating  him by failing to  notify  him of what  the court has  ruled and  the timelines  to enable  him  comply.  She referred  the court to  the bank slip to show that  he had  already released   the decretal sum to his current  advocates  in readiness  for the  opening  of a joint account  with the respondent’s advocates as security for the due performance  of decree in the lower court.  Counsel for the applicant urged the court not to punish him for mistakes committed by his former counsel.  He relied  on the Court  of Appeal decision  in John Kasimu Kilatya V Chairman Machakos  Land Disputes  Tribunal & Another  Civil Application 2012 of 2014  and Bamaja  V Zaver (2002) 2 EA 329.

In opposition  to the application, Mr  Orenge counsel for the respondent  relied on his client’s replying  affidavit  and submitted that  the applicant  had the propensity  of disregarding  court orders  hence  he did not  warrant  the discretion of this court and that he was therefore abusing court  process  by sacking  his advocates on record  every time  he defaults  to comply  with court orders.  Further, Mr Orenge submitted that the 45 days  granted by  Honourable Mabeya J on 18th June 2015 was  sufficient  time for  the applicant to comply  with court orders  and  that had  he not been aware  of the orders  of the lower court  and this court, he could not  have instructed  his former advocates  to negotiate  for a settlement  or even file  an appeal as shown by  copy of index HCCA  116 of 2015  signed  by Njau Ngigi  & Co Advocates.

Mr Orenge maintained that the applicant   was a dishonest  person to the court and  that the allegation of misconduct  by his former  advocates  was bare  since there was no evidence of any complaint  lodged  with Law Society of Kenya or Advocates Complaints  Commission  for professional negligence .  He urged the court to dismiss the applicant’s application with costs.  Nonetheless, Mr Orenge  was of the view  that should this court exercise  its discretion in favour of the applicant then  he should be given the  shortest  time possible  of between 2-3  days  to comply with the  orders  of 18th June 2015.

In a brief rejoinder, Ms Kimachia  submitted that there  was no  evidence   of the appellant having  filed Appeal No. 116/2015 as the  index annexed  has no court stamp  hence this court  should disregard  that annexture.

I have carefully considered the application by the applicant, the grounds thereof supporting affidavit and annextures.  I have also considered the replying affidavit, annextures  and both parties’  counsels’  able  rival  submissions  for and  against  the application.

The only issue for determination is whether the applicant’s application for enlargement of time and stay of execution has merit.

The applicable  law is Sections 63(e), as  of the  Civil Procedure Act, section 95 of the Civil Procedure Act,Order 42  Rule 6 of the Civil Procedure Rules and Order 50 rule 6 of the Civil Procedure Rules. Under  Section 63(e) of the  Civil Procedure Act, In order  to prevent  the ends  of justice  from being defeated, the court may, if it is so prescribed, make  such other  interlocutory orders as may appear to the court to be just and convenient.  On the other hand, Order 50 Rule 6 of the Civil Procedure Rule provides that:

“ Where a limited time has been  fixed for doing any act of 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 is not  made until after the expiration of the true  appointed or allowed.  Provided that the  costs  of any  application to extent such time and  of any  order made thereon  shall be borne by the parties  making  such application, unless the court  orders otherwise.”

Furthermore, Section 95 of the Civil Procedure Act is clear that:

“ where  any period is fixed or granted by the court  for the doing of any  act prescribed  or allowed by the act, the court may, in its  discretion, from time to time, enlarge such  period, even though  the period  originally fixed  or granted may have  expired.

From the  above provisions  of the  law, it is  trite that  the  power to enlarge time for doing  any act  which time  is by the court  and has expired is  available to the court and is discretionary.

The provisions of the law above  are  crafted  in a manner that  recognizes  that there  had been an earlier period  of time which had  been fixed  or extension or extensions  of time which had  been granted but expired.

Being a matter of discretion of the court, granting enlargement of time will depend on the circumstances of each case which vary from case to case.  It therefore follows that  previous  enlargement  per se does not  limit the  power of the court to  enlarge  time except that, only previous  enlargements  will be  considered by the court  in determining  whether  the applicant has abused  the process of the court and should not, therefore, benefit  from any discretion of the court.  See Fidelity Commercial Bank Ltd V Azim Jiwa Rajwani (2014) e KLR.

The  respondent’s counsel, Mr Orenge submitted that  the  applicant has the propensity  of disobeying   court orders  and sacking his advocates  on record  and hiring  new ones  while feigning  frustrations from his former  advocates  through failure  to furnish  him with  information  following rulings by the court thereby making it difficult  for the applicant to comply  with court  orders:

Mr Orenge  contended that  the applicant  was laced  with unclean hands as he  had failed to obey orders of the  subordinate court which required  him  to pay thrown away  costs of  kshs  15,000/- to the respondent and file a  defence  within 7 days  and it was after he had defaulted to comply that he sacked  his advocate on record  and sought  enlargement  of time which  was rejected by the court hence  this matter  of the intended  appeal.  In his view, the applicant was abusing the court process.  In addition, that the applicant had  delayed  in bringing  this application after  being given  sufficient  45 days hence  he should not  benefit  from the  discretion of the court.

In exercising the discretionary power to grant or refuse to grant enlargement of time, the court has to be guided by some factors including.

i. Whether there has been indolence  on the part  of the applicant or default  which has not been explained;

ii. Whether the applicant is guilty of abuse of court process.

iii. Whether the enlargement will prejudice the defendant.

iv. Whether the denial of further period to comply will occasion prejudice to the applicant given the circumstances of the case.

v. Whether  the enlargement  is necessary  for the  effectual complete  adjudication  of the issues in controversy;

vi. Whether it is just to enlarge time in the circumstances of the case.

Once  the court is persuaded  that it  is in  the interest  of justice to enlarge  time, it will exercise  its unfettered discretion  in favour  of the applicant  and  impose terms and  conditions on which it will allow  enlargement of time, which  requirement, besides an award  of costs  to the respondent  as espoused  in the proviso to Order 50 Rule 6, serves  the legitimate  expectation on the part of  the respondent that he is  not being  unfairly prejudiced  by such enlargement.

The applicant  was on 18th June 2015  granted  45 days to file and serve  a Memorandum  of Appeal  and deposit  the whole decretal  sums  into a joint interest earning account  to be  opened  and operated  by both parties’  advocates.  The forty five days lapsed on 2nd August 2015 by which time there was no compliance.  This application was filed on 31st August 2015, about one month after the original period granted by the court had lapsed.

The issue therefore is whether the applicant was indolent or had slept on his rights.  According to the applicant, his advocate  on record  did not  notify him of the order and the  timelines  for compliance  despite concerted efforts to know  the position  and  outcome  of the application heard  by  Honourable Mabeya  J, and that upon  being frustrated, he instructed the current advocates  on record who perused the  court file and advised  him accordingly, by which  time, compliance  period had  lapsed.  He urged the court not to  visit on him the  mistakes of his  counsel relying on the Court of Appeal decision  of John Kasimu Kilatya  V The Chairman Machakos  Land Disputes  Tribunal & Others (supra) where  the court citing  with approval  the case of Ramanya V Zaver(2002) 2 EA 329 held that :

“The mistakes, faults or dilatory conduct of counsel should not be visited on the litigant.”

On the other hand, the respondent’s  counsel  urged the court to find  the applicant dishonest  as he had  instructed  his former advocates  to file an appeal from the Githunguri  ruling vide  HCCA 116 of 2015  yet he  had turned round  and filed those proceedings  an indication that he was hell bent to delay justice and deny the respondent the fruits of this lawfully obtained judgment.  Further, counsel for the respondent    submitted that if the applicant  was wronged  by his former advocates  there was no single complaint  against  them to the Law Society of Kenya  or Advocates Complaints Commission  for professional negligence, an  indication that he was attempting  to steal a match  on the respondents.  In the John Kasimu Kilatya case, the Court of Appeal (Warsame JA) was categorical that:-

“ It is not every mistake or error  of an advocate that would be  excused; only those acts  and omissions  which meet the  threshold  of a proper   and  reasonable  explanation would benefit  from the  discretion of the court.”

In that case, the advocate for the  applicant had owned  up to  failing to  file  Notice of Appeal within time due to  an  oversight  on her part  and the court  accepted  her explanation  thereby enlarging  time for  filing of Notice of Appeal.

In this case, I have set out what the  applicant  gives as an excuse  for the  failure to  comply  and for the delay  thereof  as being  occasioned  by his advocate’s  failure  to notify him of the position to enable  him comply.  That was, indeed the same reason which the applicant gave in the lower court for failure to comply with conditional orders for the setting aside of exparte judgment.

This court asks, is it by bad luck that all the advocates that the applicant retains have to conduct themselves the same way?  This court, regrettably, has no means of establishing  the veracity of those  similar allegations  against the applicant’s former advocates.  The copy of index  showing that an appeal had been filed  annexed by the  respondent, regrettably has no court  stamp to show whether  indeed an  appeal  was filed.  This court  would  not go on a fishing spree to  gather evidence of how honest  or dishonest  the applicant has been in the past.  It was incumbent upon the respondent  who alleged  dishonesty on the applicant’s  part to prove  the allegations, to the  required standard  of balance   of probabilities.  It was  not sufficient to allege in an affidavit  matters which  he could not   with precision prove.  I note that in the lower court, the  applicant alleged  that his advocate did not even respond to an application  which sought to reinstate interlocutory  judgment  after the applicant had defaulted to file defence and pay  thrown away costs within 7 days.

In my view that, indeed is a serious allegation against  the advocate  that led to the applicant loosing  the right to defend the claim  against him, similarly, it is a serious  matter to  decline  to inform  a client  of the conditions  set by  the court.

The applicant impresses this court as a fighter to the bitter end.  He has   shown real and serious  interest in contesting  any  orders that are made  against  him and it seems like  until he is  given a chance  to defend  himself he will not rest.  He does not  impress me as  an indolent  party.  He may not have lodged  a formal complaint against  his former  advocates to the Law Society of Kenya or to Advocates Complaints Commission.  Nonetheless, he has  complained to  this court  where he beseeches  the court to grant  him an opportunity  to be heard.  There is nothing on record  to make  me believe that the applicant must have  been aware of the ruling  by Honourable Justice Mabeya and that he deliberately  refused or failed  or neglected  to  comply  with the same.

There is  no legal requirement  for parties  who are  represented  by their advocates to  be present  when interlocutory applications  are being  heard or ruling delivered.  There  is also  no evidence that the applicant’s  former advocates notified  him of the ruling by Honourable  Mabeya J, urging  him to avail  the  decretal sum  for depositing  in a  joint earning  account  to be held by  both parties advocates.

The applicant has annexed  copy of banking  slip for the amount  ordered by Honourable  Mabeya  J.  He has  already  deposited the money  with his  present advocate  in readiness  for compliance  with the orders of this court which  lapsed, and in anticipation  that this  court grants  him another  chance by enlarging the time.

There  is no denial that from time to time, most advocates  make  blunders which impact  negatively on their  clients’ cases.  But inmy view, It is not every other  blunder that must  land an advocate  before the Advocates Complainants Commission  or Law Society  of Kenya’s disciplinary table.  The level  of awareness  of the affected  client  also matters.  It has not been shown that the applicant  is feigning  ignorance of his rights to complain against  his former advocates.  what  I gather from his application is that he is imploring  this court  to exercise  discretion  and accord  him a hearing.  Punishing an advocate  for every sundry of  blunders  does not  necessarily accord justice to the client.

I am fortified by the holding  in United Arab Emirates V Abdel Ghafar & Others  1995 IR LR 243 cited with  approval  in Nicholas Kiptoo Arap Korir  Salat  V IEBC & 7 Others (2014) e KLR  that :

“……………the grant or refusal  of an  extension of time  is a matter of  judicial discretion to be exercised, not subjectively, or  at whim or by rigid rule  of thumb, but  in a principled manner  in accordance  with reason and justice.  The  exercise  of the discretion is a matter  of weighing  and balancing  all the  relevant  factors  which appear from  the material before the appeal tribunal.  The result  of the exercise  of a discretion  is not dictated by any set factor.  Discretions  are not packaged, programmed  responses.”

2.  As Sir Thomas Bingham M.R. pointed  out in Costellow V Somerset CC (supra) at page 956 C, times problems  arise at the intersection of two principles, both salutary, neither absolute. ………..The first principle is that the Rules of court and   the associated rules of practice, deserved  in the  public interest to promote  the expeditious  dispatch of litigation, must be observed.  The prescribed  time limits are not  targets to be  aimed at  or expressions of pious hope but requirements to be met…..”  ( Emphasis added).

The second  principle is that:

“…….a plaintiff should not in the ordinary way be denied an adjudication  of his claim on its merits because of a  procedural default, unless the default  causes  prejudice  to his opponent  for  which an award  of cost cannot  compensate………”

3.  The approach indicated in these two principles  is modified  to the stage  which the relevant proceedings have reached.  If for example, the procedural default  is  in relation to an interlocutory  step in proceedings, such as a failure  to serve a  pleading  or give  discovery  within the  prescribed  time limits, the court  will, in the ordinary way and in the  absence  of special circumstances, grant  an extension of time.  Unless the delay  has caused irreparable  prejudice, to the  other party, justice will usually favour  the action proceeding  to a full trial  on  the merits.

The approach is  different, however, if the procedural default as to  time relates to an appeal against  a decision on the merits  by the court or tribunal of first instance.  The party  aggrieved  by that decision  has had  a trial to hear  and determine  the case.  If he is  dissatisfied  with the result  he should  act promptly.  The grounds for extending  his time are not as strong as where  he has not yet  had a trial.  The  interests  of the parties and the  public in certainty  and finality  of legal  proceedings  make the court  more strict  about time  limits on appeals.  An extension may be  refused even though the  default in observing  the time limit  has  not caused  prejudice  to the party successful  in the original  proceedings.

4.  An extension of time is an indulgence  requested  from the court by a party in default.  He is not  entitled  to an extension.  He has no reasonable  or legitimate  expectation of receiving  one.  His only  reasonable  or legitimate expectation is that  the discretion relevant  to his application  to extend time  will be exercised  judicially in accordance  with established  principles  of what is fair  and reasonable.  In those  circumstances, it is   incumbent   on the  applicant  for an extension  of time to  provide  the court with it full, honest   and  acceptable  explanation of the reasons for  the  delay.  He cannot  reasonably expect  the  discretion to be exercised  in  his favour, as a defaulter, unless he provides an explanation  for the default.”

The above principles espouse discretion of the court and how it should be applied in enlargement of time.

In my view, it has not been demonstrated to the  satisfaction of this court that  the applicant is abusing the process  of the court.  To my mind, the  applicant  has demonstrated  a desire  to be heard.  The  matter giving rise  to these  proceedings proceeded  exparte.  He did not have his day in court  and hence, the incessant  and persistent spirit.  That right to be  heard  and to be accorded justice  is guaranteed by Article 50(1)  of the Constitution.  His former advocates’ conduct is of course unacceptable.

However, where  the justice of case mandates, mistakes  of advocates  even if blunders  should not be visited on the clients  when the  situation can be remedied  by costs.

In Philip Kelpto Chemwoto  & Another V Augustine  Kubende (1986) KLR 492, the Court of  Appeal  was categorical 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”…..  I think the broad  equity approach to this matter is that   unless there if fraud  or intention to  overreach there is no error or default that  cannot be  put right by payment of  costs.  The  court as  is often said  exists  for the purposes of deciding  the rights of the parties  and not  for the  purpose  of imposing  discipline”.

Indeed, the main purpose of litigation, namely  the hearing and determination of disputes, should be  fostered  rather than  hindered  and errors   and lapses  should not necessary  debar  a litigant  from the  pursuit  of his rights under  the law by ousting  him from the judgment  seat. In this case, Justice can still be done  despite  the delay as the decretal sum shall be  secured.

In Mwai V Murai No. 4 (1982) KLR Madan JA said.

“ A mistake  is a mistake, it is  no less  a mistake  because it  is an unfortunate  slip.  It is  no less pardonable because  it was committed  by Senior Counsel  though in the case  of 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 interests  of justice  so dictate.”

The applicant  has deposed  that he  followed  up his  case with his former advocates to find out  the position.  He had  a duty to pursue  his matter so that  he does  not just  blame  his advocate.

This court finds  that the failure  to comply  with the  order  has not  occasioned the respondent any prejudice which cannot be  compensated  by an award of costs.  On the other hand, the applicant,  unless he is accorded an opportunity  to ventilate  his grievances, will be  greatly prejudiced.  He will be ousted from the  judgment seat  unheard, given the circumstances  of the case.  It is  therefore, in  my view, and  which has been  explained  to the satisfaction  of the  court that the delay is not  unreasonable.

It is  for the above  reasons that I exercise  my discretion and allow  the application for enlargement  of the original  time of   45 days  from 18th June 2015 to file  and serve a Memorandum of Appeal  upon the respondent and for  the depositing  of  the decretal sums  in a joint interest  bearing account  of parties  advocates  by a further  21 days  from the date hereof.

Having enlarged the time for  complying  with the orders of Honourable Mabeya J  of 18th June  2015, accordingly, I reinstate the  orders of  stay of execution of  decree in the lower court pending hearing and determination  of the impending appeal.

As a precautionary measure, and in the event  that the  applicant comes  up with a similar blame  against  his current advocate, this matter shall be mentioned on 8th October 2015  to confirm compliance.

In addition to the  above order, and pursuant  to the proviso to order  50 Rule 6, and as  the delay  in complying  with the  order of the court within the stipulated  period was not occasioned  or contributed to by the respondent  in any way, I order that  he be compensated  by an  award of  thrown away costs of this application assessed at  kshs 50,000/- to be settled  within the  next 21 days  from the date  hereof  in default, the respondent shall be  at liberty to  execute for recovery notwithstanding  the pendence  of the intended appeal.  This ruling is adopted as the decision of this court in HCC Misc.App 14/2015 with necessary adaptations as to parties and decretal sum.

Dated, signed and delivered in open court at Nairobi this 16th day of September 2015.

R.E. ABURILI

JUDGE

16/9/2015

Coram R.E. Aburili J

C.A. Adline

Mr. Mege  holding brief for Miss Wangari for  applicant.

Mr Kulecho holding brief for  Orenge  for the respondent

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

R.E. ABURILI

JUDGE

16/9/2015

COURT -   Mention on 8th October 2015 to confirm compliance   with this ruling.

R.E. ABURILI

JUDGE

16. 9.2015