[2015] KECA 392 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KOOME, MWERA & MWILU, JJ.A)

CIVIL APPLICATION NAI. NO. 246 OF 2013

A L N ………….............………..……..APPLICANT

VERSUS

AGA KHAN HEALTH SERVICE ……RESPONDENT

(Application for extension of time to file Notice and record of appeal out of time in the intended appeal from the judgment and decree of the High Court of Kenya at Nairobi (Mutungi, J) dated 22nd July 2008 in H.C. Appeal No. 275 of 2004)

*******************

RULING OF THE COURT

The ruling we are about to deliver, follows reference by the applicant,A L N under Rule 55 Court of Appeal Rules, provoked by the ruling of the single judge (Musinga J.A) delivered on 4th April, 2014.

Musinga JAheard the applicant’s notice of motion dated 3rd September 2013 by which he sought leave to file a notice of appeal as well as record of appeal out of time. The judgment which the applicant wishes to institute an appeal against was delivered on 22nd July 2008 (O.K. Mutungi J as he then was) in HCCA 278/2004. The appeal followed a ruling in the magistrate’s court delivered on 8th April 2004, dismissing an application to strike out a plaint.

Briefly put, the applicant was an employee of the United Nations (UN) in Nairobi. The UN had a medical scheme under which the applicant and his family, would visit the respondent hospital for medical services. The applicant with his family visited the respondent hospital on 17th August 1996 and 10thAugust 1996, received dental care services and also hepatitis injections. He paid and later submitted a claim to the employer for reimbursement. However on 27th August 1996 the respondent by its letter, communicated to the UN that the applicant with his family did not visit the respondent’s establishment on13th August 1996 for services. It stated in the letter that the applicant and his family had used the same invoices twice to procure hepatitis injections. The UN considering that the applicant was perpetuating false misrepresentations, summarily dismissed the applicant. The applicant then sued the respondent in the subordinate court on account of the letter of 27th August 1996 which led to his summary dismissal. In the suit the applicant alleged that the said letter breached the contractual doctor – patient relationship of trust and confidence. That the letter constituted a blight on the applicant’s integrity and trustworthiness and it also led to his being dismissed.

The respondent who admitted in its defence writing the letter complained of, however, maintained that its dental register did not reflect that the applicant visited the clinic, a matter which was still under investigation. The respondent then filed a chamber summons to strike out the plaint on the basis that it disclosed no reasonable cause of action and that the suit was time-barred. The lower court dismissed that application, provoking the appeal thatMutungi Jheard. On 22nd July 2008 he allowed the appeal, reversed the magistrate’s orders of 8th April, 2004, and granted the orders sought in the chamber summons. The judge stated that the applicant’s plaint did not disclose a reasonable cause of action against the respondent either in tort or on contract. Following that, the applicant did not file a notice of appeal as per the law, nor did he file a record of appeal. But he filed the motion herein on 3rd July 2009 under Rule 4 – eleven months after the decision of Mutungi, J. seeking enlargement of time to institute his appeal. Githinji JA heard and dismissed that application. The application went before the ful bench which referred the matter again to a single judge, the Hon. Musinga JA.Musinga JAwent over the relevant history of the matter, perused the affidavits together with the exhibits the applicant presented. The learned judge similarly addressed the contents of the replying affidavit opposing the motion.

In citing the case of Shah vs Southern Credit Banking Corporation Ltd[2008] KLR 173, the judge restated that in deciding the motion before him, he was exercising an unfettered discretion. In doing so he did consider the length of delay involved, the reasons for it, the prejudice that may befall the respondent, if the sought leave is granted and the merits of the intended appeal.

Beginning with the period of delay, the judge noted that it was 6 years from the date the judgment was delivered and when the application to seek leave to initiate the appeal was filed. He found that period to be quite long with no sufficient or reasonable explanation given. With the cause of action having arisen in 1996 the learned judge opined that granting the order sought would amount to reopening the dispute to the prejudice of the respondent especially as regards tracing of witnesses.

In relation to the merits of the intended appeal, the learned judge was not satisfied that the same could be arguable. And quoting from the plaint the prayer for a declaration that the respondent’s letter of 27th August 1996 addressed to the applicant’s employer had allegedly caused him injury because it had spoken of negligent and reckless misrepresentation, warranting an award of general damages, Musinga JA considered that the suit was a claim in tort which the applicant was obliged to file within 3 years from the date the cause of action arose. With regard to the pleading by the applicant that the letter in issue led to the loss of his employment, and so he sought damages, the judge saw this claim by the applicant as one based on a contractual relationship. While noting that the applicant was a subscriber to the medical scheme with the respondent, Musinga, JA nonetheless, thought that that did not entitle him to bring a tortuous claim against the respondent. However, he observed that had the applicant sued the respondent in tort and on time, the suit could have had high chances of success. But that he did not take that course, and from the findings of Mutungi, J. the appeal had been properly allowed. Therefore the intended appeal had no chances of success here and the motion was dismissed.

The reference under Rule 55 to the full bench confines us to exercise discretion in the arena of principles governing enlargement of time under Rule 4 which we have already stated above. In the event the applicant satisfies us that the single judge erred in declining to grant leave sought, then we can vary, discharge or reverse the order, discretion or decision in issue.

We heard the applicant, acting in person, say that his claim in the subordinate court was not based on tort. It was based on a breach of doctor – patient relationship. Asked to point to us the part in Musinga J.A’s ruling where he may have erred and therefore entitling us to intervene, the appellant did not point to any, except to say that he was before us to pursue justice.

Mr. N. Shah,learned counsel for the respondent cited, among several of the authorities he presented, Mwangi Vs Kenya Airways Ltd [2003] KLR 486 in which the full bench hearing a reference as the present one, delivered itself thus?

“--- before we could ever think of interfering with the exercise of a discretion by the single judge, and which discretion we have already stated, is exercised on behalf of the whole court, we would have to be positively satisfied that in coming to his decision, the single judge has taken into account some irrelevant factor, or that he has failed to take into account a relevant factor, or that he has not applied a correct principle to the issue before him or that taking into account all the circumstances of the case his decision is plainly wrong.”

Counsel told us that Musinga JA considered the delay in question, the explanation given about it, the merits of the intended appeal and the effect the reopening of the dispute would have on the respondent and dismissed the motion. We were similarly urged to dismiss the notice of motion because there was no error on the part of the learned judge.

As reviewed above, we have alluded to the history of the dispute from the subordinate court, the appeal in the High Court on the ruling not to strike out the plaint and to the decision of the High Court. Without repeating ourselves we say that we have also gone over the grounds in the motion as well as the supporting affidavit. We are satisfied that Musinga JA exercised his discretion to dismiss the application to enlarge time, on behalf of the full court, having due regard to the principles governing such applications. He did not incorporate any irrelevant factor in his determination or fail to take into regard a relevant factor. Taking all circumstances of the case into account, the learned judge dismissed the application. The applicant has not demonstrated to us why we should vary, discharge or reverse the decision of Musinga JA made in the exercise of his discretion. On our own we find none. In the result, we dismiss the notice of motion dated 3rd September 2013 with costs to the respondent.

Delivered and dated at Nairobi this 25thday of September, 2015.

M. KOOME

……………………………………..

JUDGE OF APPEAL

J. W. MWERA

……………………………….

JUDGE OF APPEAL

P. M. MWILU

……………………………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR