[2022] KEHC 3166 (KLR)

Board of Management Sessi Academy v Muslima Osman (Chairman) Ralia Golo Woche (Secretary) Khadija Abdi Bando (Treasurer) Sued as the office bearers of Manyatta Burji Women Group (Civil Miscellaneous Application E001 of 2019) [2022] KEHC 3166 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3166 (KLR)

Republic of Kenya

In the High Court at Marsabit

Civil Miscellaneous Application E001 of 2019

JN Njagi, J

July 7, 2022

Between

Board of Management Sessi Academy

Applicant

and

Muslima Osman (Chairman) Ralia Golo Woche (Secretary) Khadija Abdi Bando (Treasurer) Sued as the office bearers of Manyatta Burji Women Group

Respondent

(Being an application for enlargement of time to lodge appeal out of time against the judgment of Hon. Mbayaki Wafula, SRM, in Marsabit SRM`s Court ELC Case No.17 of 2018 delivered on 29/10/202)

Ruling

1. The Applicant has filed an application dated 26th April 2021 seeking for leave to file an appeal out of time against the judgment of the trial court delivered on 29/10/2021. The application is based on the grounds that the applicant was unable file the appeal in time as its board was unable to meet to decide on the way forward due to the current COVID 19 pandemic. That it is not until 12/3/2021 that the board met and resolved to lodge an appeal. That there is an arguable appeal with a possibility of success. Further that there is an important point of law that needs clarity by the High Court.

2. The appeal was opposed by the respondents on the ground that the Respondents were not parties to the proceedings at the trial court and therefore that they cannot be made to defend the application and/or the intended appeal. That the purported officials sued as the office bearers of Manyatta Burji Women Group are neither officials of the group nor do they have authority from members to defend this application and/or the intended appeal. That the Manyatta Burji Women Group is a juristic person capable of suing and being sued in its own name and since the said group was the defendant at the trial court it should have been the respondent in this application. That the applicant has not explained the reason for delay to warrant discretionary orders of this court to grant them leave to file appeal out of time. Further that the applicant has not annexed a draft memorandum of appeal to the application to enable this court discern the merit of the intended appeal.

3. The appeal proceeded by way of written submissions. The advocates for the respondent, Ali & Co. Advocates, submitted that the applicant requested for copy of proceedings from the trial court five months after the delivery of the judgment. That a delay of five months was manifestly inordinate and should not be countenanced. That no plausible explanation was offered for the delay. That the explanation that the applicants could not meet to decide whether to appeal or not due to COVID 19 is not plausible as they could have met virtually.

4. It was submitted that where there is no memorandum of appeal annexed to an application, the merits of the appeal can be ascertained from the grounds of motion, as was held in the case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge(2013)eKLR. However, that in this case, the grounds of appeal are not provided in a manner that can help the court determine whether the intended appeal is merited.

5. It was submitted that the application is preferred against people who were not parties to the proceedings at the trial court. That the defendant at the trial court cannot be substituted at the appeal level. That there is no explanation why the applicant intends to file an appeal against individual members of Manyatta Bulji Women Group. The respondents prayed that the application be dismissed with costs to them.

6. The advocates for the applicant, Leonard K. Ondari & Co. Advocates, on the other hand submitted that the explanation given for the delay that the board of the applicant could not meet due to COVID 19 pandemic is plausible. That it is not until 12th March 2021 that the board met and decided to lodge an appeal during which time the period granted for appeal had lapsed. That extension of time to file an appeal is a matter of exercise of discretion that should be exercised in favour of the applicant especially where as in this case the adverse party will not be prejudiced in any way. Counsel relied on the principles to be considered in deciding whether or not to grant such an application as set out in the case of First American Bank of Kenya Ltd v Gula P. Shah & 2 others, Nairobi (Milimani) HCCC No.2255 of 2000 (2002)1 EA 65 which are:(i)The explanation if any for the delay;(ii)The merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice;(iii)Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.

7. It was submitted that the applicant has a constitutional right of appeal and to be heard as was held in the Tanzanian case of Abbas Sherally &another v Abdul Fazaiboy, Civil Application No.33 of 3003, as cited in Vishva Supplies Limited v RSR Stone (2006) Limited (2020)eKLR that:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu v IEBC & 2 others(supra);Mbaki & others v Macharia & another[2005] 2EA 206; and the Tanzanian case of Abbas Sherally & another v Abdul Fazaiboy, Civil Application No 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice;…”

8. It was submitted that the trial court dismissed the claim on the ground that it had no jurisdiction to entertain the matter. It is the position of the applicant that the relationship between the landlord and tenant in the case had long been terminated and therefore that the court had jurisdiction to determine the matter. Therefore, that there is an arguable appeal with possibility of success. That the applicant stands to suffer irreparable damage if the application is not allowed as it lost huge amount of money due to the action by the respondent. That the respondents will not suffer any prejudice if the same is allowed as they will have a chance of participating in the intended appeal.

9. I have considered the application, the grounds in support thereof, the grounds in opposition thereto and the submissions. An appeal from a subordinate Court to the High Court is governed by the provisions of Section 79G of the Civil Procedure Act which provides that:“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 a good and sufficient cause for not filing the appeal in time”.

10. The decision on whether or not to grant an application to file an appeal out of time lies at the discretion of the court. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 E A 231, as cited in Gerald Kithu Muchange v Catherine Muthoni Ngare & another (2020) eKLR, the Court of Appeal held that:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.[See also Pullin Harakchand Shah v Southern Credit Banking Corporation Limited (2016)eKLR].

11. The principles to be considered in such an application were summarized by the Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat v Independent Elecctoral & Boundaries Commission & 7 others (2014)eKLR to be as follows:This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of 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 for 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. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents if the extension is granted;6. Whether the application has been brought without undue delay.

12. It is not in dispute that judgment in the case was delivered on 29/10/2020. The applicant did not file a request to be supplied with certified copies of proceedings and judgment until 13/3/2021, during which time a period of 4 ½ months had lapsed since the date of delivery of the judgment. A certificate of delay was issued by the trial court on the 20/4/2021. The appeal was not filed until the 12/5/2021.

13. It is clear that there was delay before the applicant put into motion the process of filing an appeal by requesting for certified copies of proceedings and judgment. Even after the applicant was issued with a certificate of delay on 20/4/2021, he stayed for another three weeks before filing the appeal. Excluding the 30 days right of appeal and about 3 weeks in the month of December when time does not run, there was in my calculation a delay of about 4 months. A delay of such a period is in my view inordinate. In the premises, the application was not brought without undue delay.

14. The explanation that the applicant has given for the delay is that its board members were unable to hold a meeting to decide the way forward due to problems brought about by COVID 19 pandemic. In my view the explanation is not convincing. It is common knowledge that even at the height of the COVID-19 crisis people could conduct meetings while maintaining social distance. The applicant has not shown that it was impossible for his board to conduct meetings in such a manner. The explanation is not plausible.

15. The applicant argues that the intended appeal has high chances of success for the reason that there was no landlord/tenant relationship when the suit was filed in court which he submits is an arguable issue.

16. I have considered the issue on jurisdiction. I find that there is an arguable issue on whether or not the court had jurisdiction to try the matter. I bear in mind that an arguable appeal need not be one that will succeed so long as it raises a bona fide issue for determination by the Court. It is desirable that the application be allowed for the said issue to be determined.

17. As regards prejudice, the court is required to balance the competing interests of the parties, the injustice to the applicant in denying them an extension against the prejudice to the respondents in granting an extension – see Gerald Kithu Muchange Muthoni Ngare & another (supra). The applicant is claiming some substantial amount of money from the respondents and stands to lose some substantial amount of money if the application is not allowed. It is the applicant who will be prejudiced if the application is not allowed. The respondents can adequately be compensated in costs for any prejudice that they may suffer as a result of favourable exercise of discretion in favour of the applicant.

18. The respondents have argued that the officials who have been brought into the application were not defendants in the case that was before the magistrate`s court. That they cannot be brought in the matter during appeal. The applicant made no response to this argument.

19. A perusal of the judgment of the trial court shows that the case that was before that court was between the applicant and Manyatta Burji Women Group. The applicant has introduced in the intended appeal people who were not parties in the case that was before the trial court. The applicant has not sought the leave of the court before joining the said people as prospective respondents in the intended appeal. The application should only have been filed against Manyatta Burji Women Group. I accordingly strike out the mentioned people – Muslima Osman, Ralia Golo Woche and Khadija Abdi Bando - from the application and in the intended appeal.

20. The upshot is that the application is allowed as against Manyatta Burji Women Group. The applicant to file the appeal within 14 days from the date hereof. In view of the fact that the mistake was on the applicant in failing to exercise its right of appeal within the stipulated time, they are condemned to pay the intended respondent, Manyatta Burji Women Group, throw away costs of Ksh.10,000/=. The application against the alleged officials of the said women group is struck out with costs to them.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 7TH DAY OF JULY 2022. J. N. NJAGIJUDGEIn the presence of:N/A for ApplicantMiss Halima HB Mr. Kassim for RespondentsApplicant AbsentRespondents AbsentCourt Assistant - Peter30 days R/A.