Salim Mohamed Yuga and Sawadi Abdalla Sinago (Suing as the legal representative of the estate of Mwachombo Abdalla Sinago v George Mungai Kamau [2019] KEHC 1969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

MISCELLANEOUS APPLICATION No. 157 OF 2018

SALIM MOHAMED YUGA AND SAWADI ABDALLA SINAGO

(Suing as the legal representative of the estate of

MWACHOMBO ABDALLA SINAGO......................................APPELLANTS

VERSUS

GEORGE MUNGAI KAMAU...................................................RESPONDENT

RULING

1. By a notice of motion application dated 22nd May, 2018, the applicants  herein are seeking for;

(a) Spent

(b) leave to appeal out of time;

(c) spent;

(d) costs of the application be provided.

2. The application arises from the decision made in KWALE RMCC NO. 75 of 2015, SALIM MOHAMED YUGA AND ZAWADI ABDALLA SINAGO (Suing as legal representative of the Estate of MWACHOMBO ABDALLA SINAGO, deceased) versus GEORGE MUNGAI KAMAU.

3. The application is premised on the ground on its face and the supporting affidavit of SALIM MOHAMED YUGA, the 1st Applicant herein sworn on 22nd May, 2018 and a further affidavit sworn on 31st October, 2018;

(a) Judgment herein was delivered on 8th November, 2017, and the plaintiff was awarded  Ksh 565,600/-  plus costs and interest at 100% liability;

(b) That the plaintiff’s advocates did not get a copy of the judgment to appreciate the finding and advise the plaintiff on the issues of appeal.

(c) The Applicants/ Plaintiffs being dissatisfied with the trial court’s decision went to appeal to the High court, Mombasa in which the appellant will  contest the award as issued by the Honourable court.

(d) It will be in the best interest of justice to grant the application.

4. The application is opposed by the respondent’s replying affidavit  sworn by KISHORE NANJI, ADVOCATE on the ground that;

(a) the judgment of 8th November, 2018 was delivered in the presence of  the Appellant’s advocate’s  and the court ordered for copies of the same to be  supplied to the parties, he claims to have obtained a handwritten copy of the judgment from the court registry and that the appellant’s advocate too could have obtained a handwritten judgment.

(b) the application  has been filed with unreasonable  delay of 6 months after the delivery of  the judgment which is extremely  unreasonable.

(c) the  appellant’s  advocates  were fully aware of the terms of the judgment of 8th November, 2017 because the same was delivered in their  presence and content  of the same communicated to  them through  varies communications so then by the respondent’s advocates.

5. On 25th September, 2018, parties agreed to dispose of the application written submissions and they both complied with e appellant’s counsel filing theirs on 27th September,2018 and the respondents filing theirs on 11th Apil,2019.

APPLICANT’S/APPELLANT’S SUBMISSIONS

6. In their submissions, the Applicants’ contended that their   advocates were not   supplied with a copy of the judgment on time  to enable them the Applicants. It was submitted that the court’s power to entertain an application to file an intended appeal out of time are  discretionary and unfellered. He made reference to the case of MWANGI& 2 OTHERS VRS KANYAMWI TRADING COMPANY LIMITED (2015) e KLR, as regards the conditions for grant of such application

7. According to the applicants’ there had been 6 months delay in filing the appeal and the explanation was that their advocates  were unable to obtain a copy of judgment  on time and therefore the delay was not  intentional . According to the appellants’ counsel, there is reasonable explanation for the delay. He relied on the case of JOSEPH NJOROGE VRS REUBEN WAWERU MBERIA (2017) e KLR, where the court granted leave to the applicant to appeal out of time for the sole reason that a copy of judgment was not supplied on time.

8. It is further submitted that natural justice demands that every person be given an opportunity to be heard and therefore  in the interest of justice, he application should be allowed. Finally, time limit is a procedural technicality and should be overlooked in the interest of justice by virtue of Article 159 of the Constitution.

RESPONDENT’S SUBMISSIONS.

9. The Respondent’s counsel averred that the grounds advanced by the applicant to explain the 6 months delay do not  meet the legal threshold but are a mere after thought. He reiterated what was averred in the replying affidavit.

10. He submitted that the applicant, like themselves, could have obtained the handwritten  copy of judgment and hence no plausible  reason  has been given delay. At is a mere statement without evidence to back it.  He submitted that  the applicant  did not  show when  they  were supplied with certified copy of the said judgment as alleged  and when  their advocate  was instructed to launch an appeal. According to the Respondents, the reason for delay must be specific and not based on mere statements.

11. In response to these applicants’ averments that  the court invokes the provisions of  Article 159 of the Constitution the respondent replied  filing  that the time frame for filling an appeal  is  targeted to be a timetable to litigation, for there must be an end to litigation.  And on whether the appeal is arguable, the Respondent submitted that the trial court gave reason on applying a multiplicand of 1/3 to determine  dependency ratio  since the defendants were  uncles  to the deceased.

12. Finally, the Respondent also submits that no prejudicial harm will be caused to him that will not be payable by damages should the application  be allowed. However, the Respondent seeks this court to consider that the respondent had already made a cheque of payment of the  decretal  sum in favour of the  Applicants and thus according to the Respondent, this  matter was fully settled then.

13. In considering the application that is before this court  that the singular issue  for determination is whether the  applicant  is entitled to an extension of time to lodge  his appeal.  The starting point is Section 79 G of the Civil Procedure Act which is the operative part in answering  the question as to whether  the prayer to enlarge time to file an appeal is merited. This section provides as follows;

“    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  maybe admitted out of time if the appellate satisfies the court that he had a good and sufficient cause for not filing  the appeal in  time”.

14. In the case of PAUL MUSILI WAMBUA VRS ATTORNEY GENERAL & 2 OTHERS (2015) e KLR, the court of appeal in considering an application for extension of time and leave to file a notice of appeal out of time stated the following;

“ …It is now well settled by a long line of authorities by this court that the decision of whether or not to extend the time of filing an appeal the judge excercise unfettered  discretion. However, in the excercise of such discretion, the court must act upon reasons (s) not based on  whims  or caprice. In general the matter which a court takes into  account in deciding whether to grant  an extension of time, are the  length of the delay, the reason for the delay, the chances of the appeal succeeding if the application  is granted, the degree of prejudice to the respondent if the application is grated…..”

The instant application for extension of time will be considered against the factors set out in the above cited case.

15. The first being the length of delay and reason thereof. Judgment  in the case that is intended to be appealed against, was delivered on 8th November, 2017 and thereafter , the applicant’s  advocate  applied  for a copy of the judgment which allegedly took a long time to obtain. The respondent’s advocate however asserted that  he obtained a copy of the hand written  judgment which  he  believed that the appellant  could have obtained too. The application herein was filed on the 4th June, 2018.

16. It will be noted that the delay in filing the  application was for about six (6) months which cannot be said  not to be inordinate. However, the only explanation in not filing the appeal in time was that the appellants could not obtain a copy of the judgment in time either by the time  the  contents of judgment were  explained  to the  appellants, the  time for filing an appeal had already lapsed. The Respondent on the other hand contends that there are mere statements and not prove thereof.

Section 109 of the Evidence Act provides for proof of a  particular  fact and it is of relevance in the present instance.  It proves that:

“ The  burden of proof as to any particular fact lies  in the person  who  wishes the court to believe in its existence, unless it is produced by  any  law  that the proof of fact shall be on  any particular person”.

17. The appellant only alleged that they applied for certified copy of judgment which was supplied to them when time to appeal had lapsed. There is no evidence produced in support thereof. No correspondence  addressed to court registry in request of the judgment or any payment made to  that effect or when the judgments  was supplied to the appellant has been annexed to the application. This court can therefore not infer when the judgment was supplied to the appellant so as to  invoke its discretion.  It is a general rule of evidence, that  he  who  alleges  must prove and in this case the appellants have not  discharged the burden of  proof on this  rule on a balance of  probabilities.  Therefore, the  reason for the delay in this case is not  persuasive. A delay of six (6) months   was inordinate and the applicant has not satisfied the court that they had good and sufficient cause for not filing the appeal in time.

18. The second factor is whether the appeal has chances of succeeding .The decision from which an appeal is   intended to be sought was a road traffic accident and the main contention of the Applicant is that  the trial court erred in applying a ratio of 1/3 when determining loss of dependency despite the evidence on record. Both parties  had submitted for dependency ratio  of 2/3.

19. Upon perusing a copy of the judgment, the trial court observed the dependents were uncles to the deceased and applied a ratio of 1/3 .The appellants submitted that the deceased was a father and had a family which depended on him.

20. In my view, since the ratio was not contested by the parties in their submissions before the lower court, I find that the appeal is arguable. At this point, the applicant is not required to persuade the appellate court that the intended or filed appeal has a high probability of success. All one is required to demonstrate is the arguable of the appeal; a demonstration that the appellant has plausible and conceivably persuasive grounds of either facts or law to overturn the original  verdict. The applicants have easily met the standard. I believe that the applicant has discharged this burden and associate myself with the decision of the court of appeal (Kiage , J. A ) in the  case of NICHOLAS KIPTOO ARAP KORIR SALAT VRS INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 6 OTHERS (2013) e KLR had this to say;

“I am  not in the  least persuaded  that Article  159 of the Constitution and the oxygen principles  which both commend courts to seek to do  substantial  justice in an efficient, proportionate and cost effective manner and to eschew defeatist technicalities  were ever meant to  aid in the overthrown or destruction of rules of procedure and to create an  anarchical free for all in the  administration of justice. This court, indeed all courts, must never provide succour and  cover to parties who exhibits scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just , certain and even  handed. Courts cannot aid in the bending or circumventing of rules and a  shifting of goal, posts for, while  it may seem to aid one side, it  unfairly harms the  innocent party who  strives to abide by the rules. I apprehend that it is in the even handed and dispassionate application of rules that courts give assurance that there is clear method  in the manner  in which things are done so that outcomes can be anticipated with a measure of confidence, certainly and  clarity where issues of rules and  their application are concerned”

21. For the reasons advanced in the above cited case, decision of the court must be redolent of fairness and reflect the best interest of the  people who the law is intended to serve.  It is  important to point that a court must  balance between the right of a party to have his/her case heard  expeditiously under the principle that justice must not be delayed as  enshrined in Article 159 (2)  (b) of the Constitution  of Kenya, and the equally important fundamental right of  the other party to have a fair hearing  as guaranteed in Article 50 (1) of the Constitution of Kenya.

22. It therefore follows that a person ought not to be shut out from accessing court or having his day in court. This court does not see the prejudice the Respondent would suffer if this court first heard, the Applicants’ appeal since the point which lays basis to the intended  appeal has not been contested, by the respondent, this court is  hesitant to deny the Appellant a chance to prosecute their case.

23. The upshot of the foregoing is that the application dated 22nd May, 2018 succeeds with the following orders;

(a) the appellant shall file and  serve an appeal within 21 days from the date hereof;

(b) the costs of the application shall be in the intended appeal.

Dated, signed and delivered at Mombasa his 14th day of October, 2019.

D. O. CHEPKWONY

JUDGE