[2017] KECA 779 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MUSINGA, J.A. (IN CHAMBERS))

CIVIL APPLICATION NO. 50 OF 2016

BETWEEN

APA INSURANCE LIMITED …................ APPELLANT/APPLICANT

AND

ROSELINE AWINO OKWACH ……………..…. 1ST RESPONDENT

JOSHUA OMONDI AGORO ………….….….... 2ND RESPONDENT

PAN AFRICA INSURANCE CO. LTD ….....….....3RD RESPONDENT

PA SECURITIES LIMITED ……………....…....... 4TH RESPONDENT

(Application for extension of time to file Notice of Appeal out of time in the intended Appeal from a ruling of the High Court of Kenya at Kisumu, (Chemitei, J.) dated 27th May, 2016

in

HCCC NO. 67 OF 2004)

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

RULING

1. On 27th May, 2016 Chemitei, J. delivered a ruling vide which the court granted the 1st and 2nd respondents’ application for an order to summon to court the then Managing Directors of M/S PA Securities Limited and APA Insurance Limited to produce under oath various materials and information.

2. The applicant was aggrieved by the said ruling but did not file an appeal against the ruling.

3. By an application dated 4th July, 2016, the applicant sought leave to file an appeal out of time. The application was premised on grounds that the intended appeal is arguable but shall be rendered nugatory unless the leave sought is granted; that failure to file a notice of appeal within the stipulated period of time was due to circumstances beyond the control of the applicants; and that the respondents shall not suffer any prejudice if the application for extension of time is granted.

4. In an affidavit sworn by one Paul Kariba Kibiku, the appellant’s Legal Officer, he deposed, inter alia, that following delivery of the impugned ruling by the High court, the applicant’s directors had to sit down and discuss the ruling before making a decision whether to appeal or not.

5. The applicant’s Chief Executive Officer, Mr. Ashok Shah, was said to have been out of the country for two months and could not be reached to give directions on the High Court ruling; and one John Simba, who was no longer a director of the applicant, had to be consulted regarding the matter.

6. The Legal Officer further deposed that:

“the difficult in having all the Directors of the Company available at the same time occasioned the delay in instructing the Company’s Advocates on record to file an appeal in the Court of Appeal against the ruling of the Honourable Court.”

7. The 1st and 2nd respondents opposed the application. Through their advocates, the respondents filed grounds of opposition and a list of authorities. They stated, inter alia, that the applicant had failed to explain the inordinate delay of two months; that the applicant had not demonstrated that there was an arguable appeal; and that the 1st and 2nd respondents will suffer prejudice if the application is granted.

8. In his brief submissions, Mr. Maganga, learned counsel for the applicant, reiterated that the ruling sought to be appealed from was delivered when Mr.Ashok Shah, the Chief Executive Officer of the applicant company was out of the country, and could not be reached to give directions. He added that the intended appeal is arguable. On the other hand, Mr. Mkomba, learned counsel for the 1st and 2nd respondents, made brief submissions to buttress the grounds of opposition as highlighted above.

9. I have given due consideration to the applicant’s affidavit, grounds of opposition by the 1st and 2nd respondents and the oral submissions on record.

10. The factors that the Court must take into account in the exercise of its discretion in an application of this nature are well settled. They include the length of the delay; the reason for the delay; the chances of success of the intended appeal; and the degree of prejudice that is likely to be occasioned to the respondent(s) if the application is allowed. See LEO SILA MUTISO V ROSE HELLEN WANGARI MWANGI, Civil Application No. 255 of 1997. It is against these principles that I shall consider this application.

11. The ruling sought to be appealed from was delivered on 27th May, 2016. The application for extension of time was filed on 4th July, 2016. The notice of appeal ought to have been filed within fourteen days from 27th May, 2016. Excluding that period, the delay was for about 24 days. While the delay is not inordinate, it may not be excusable per se; it requires to be properly explained. This Court has severally held that its Rules must be obeyed and any delay in complying with the Rules must be explained satisfactorily. See GRINDLAYS BANK INTERNATIONAL (K) LIMITED V GEORGE BARBUOR[1996] eKLR.

12. I found the explanation that was advanced by the applicants totally unsatisfactory. In this day and age when technology has made communication so easy, it is unbelievable that a Chief Executive Officer of a big Insurance Company could not be reached over a period of nearly two months. The applicant’s Legal Officer did not explain why the company was unable to reach Mr. Shah on his mobile phone or email address, which is inconceivable. In any event, Mr. Shah was not the only director of the applicant. The ruling ought to have been promptly relayed by relevant means to all concerned persons, who would then have given instructions to their advocates. I do not agree that all the directors of the applicant had to have a Board Meeting before instructing their advocates to file a notice of appeal. In BI-MACHI ENGINEERS LIMITED V JAMES KAHORO MWANGI [2011] eKLR Waki, J.A. held that:

“The filing of a notice of appeal is a simple and mechanical task and could even have been done soon after the applicant became aware of the judgment.”

I respectfully adopt that sound finding.

13. Secondly, the applicant did not demonstrate that the intended appeal has good chances of success. No draft memorandum of appeal was annexed to the applicant’s affidavit in support of the application. Alternatively, the applicant did not set out in its affidavit the grounds that are intended to be argued in the proposed appeal. In ELDORET WATER AND SANITATION COMPANY LIMITED V WILSON K. TUIGONG [2016] eKLR, this Court held that failure to file a draft memorandum of appeal or to specify the intended grounds of appeal is fatal to an application for leave to file an appeal out of time. I adopt the same position in this application.

14. In view of the above findings, it would be superfluous to consider the degree of prejudice that would be occasioned to the 1st and 2nd respondents by the grant of the application. Needless to say, the 1st and 2nd respondents obtained judgment in their favour way back in 2001 and any delay in examining the directors of the relevant companies will be prejudicial to them, having waited for over 15 years for the full decretal sum. The directors of the 3rd and 4th respondents will not suffer any prejudice by availing themselves to court for examination as sought by the 1st and 2nd respondents.

15. All in all, I find this application lacking in merit and dismiss it with costs to the 1st and 2nd respondents.

DATED and Delivered at Kisumu this 10th day of February, 2017.

D. K. MUSINGA

…………………..….

JUDGE OF APPEAL

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

DEPUTY REGISTRAR.