[2022] KEHC 15512 (KLR)

Co-operative Bank of Kenya Limited v Kimunya (Civil Appeal E059 of 2021) [2022] KEHC 15512 (KLR) (Civ) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15512 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E059 of 2021

CW Meoli, J

November 17, 2022

Between

Co-operative Bank of Kenya Limited

Appellant

and

James Mbugua Kimunya

Respondent

Ruling

1. Before the court for determination are two motions. The first is dated July 22, 2021 and was by James Mbugua Kimunya (hereinafter respondent), and the second is dated December 3, 2021 and filed by Co-operative Bank Kenya Limited (hereinafter the appellant). For purposes of this ruling, the court will hereafter refer to the motions as the respondent’s motion and the appellant’s motion, respectively.

2. The respondent’s motion primarily seeks to strike out the memorandum of appeal and record of appeal. The motion is expressed to be brought under section 1A, 1B, 3A & 79G of the Civil Procedure Act (CPA), and Order 51 Rule 1 of the Civil Procedure Rules (CPR). On the grounds on the face of the motion as amplified in the supporting affidavit sworn by Kevin Ng’ethe, counsel on record for the Respondent. To the effect that judgment was delivered in Nairobi Milimani CMCC No. 6427 of 2013 on July 12, 2019 following which on August 15, 2019 the Appellant filed HC Misc. Civil Application No. 545 of 2019 and that pursuant to the ruling delivered therein on May 7, 2020, no leave to file an appeal out of time was granted as no such prayer had been sought in HC Misc. Civil Application No. 545 of 2019. He goes on to depose that the memorandum and record of appeal in the instant matter were filed on February 12, 2021 which is a period of one year and seven months after delivery of the judgment of the lower court. That because the memorandum of appeal was filed out of time, this court has no jurisdiction to hear this appeal. In counsel’s view the proceedings herein are an abuse of the court process, the appeal being incompetent and liable for striking out.

3. The Appellant opposes the motion through the replying affidavit of Pkania C. Kiplagat counsel having conduct of the matter. He views the motion as one brought in bad faith with the sole aim of denying the Appellant the right to exhaust its right of appeal even after providing security for the appeal. He deposes that the court has unfettered discretion to admit an appeal out of time where sufficient cause is shown.

4. He asserts that although judgment in Nairobi Milimani CMCC No. 6427 of 2013 was delivered on July 12, 2019 the typed judgment of the lower court was not supplied to the Appellant until 14. 08. 2019; that the Appellant thereafter filed HC Misc. Civil Application No. 545 of 2019 on August 15, 2019 and that though the memorandum of appeal was attached to the said motion, the same was inadvertently not filed; that the Appellant thereafter applied for typed proceedings which were only availed on March 15, 2021 hence the late filing of the record of appeal; and that the Respondent has always been keen to file the instant appeal and delay in doing so was an honest oversight on the part of counsel that ought not be visited on the Appellant. He further adds that delay in filing the appeal was occasioned by the time taken in procuring the typed proceedings.

5. Regarding provision of security, counsel deposes that despite the courts’ ruling on May 7, 2020 in HC Misc. Civil Application No. 545 of 2019 the Respondent’s counsel has failed to and or refused to execute the account opening forms. He goes on to assert that no prejudice will be suffered by the Respondent if the appeal were to proceed on merit since security for the decretal sum has already been provided, the record of appeal filed and directions on the appeal already issued. He concludes by stating that it is in the interest of justice that the motion be declined, and the appeal be allowed to proceed to hearing on merit.

6. The Appellant’s motion on its part seeks that the court be pleased to admit the memorandum and record of appeal filed out of time on March 5, 2021. The motion is expressed to be brought under Section 3A & 79G of the Civil Procedure Act (CPA) and is supported by the affidavit sworn by Pkania C. Kiplagat. The gist of the affidavit reiterates the deposition in his replying affidavit in opposition to the Respondent’s motion but in addition, counsel contends that unless the prayers sought in the instant motion are granted, the appeal will fail on a technicality occasioning extreme prejudice to the Appellant which will be condemned to pay the decretal sum without having exhausted its right of its appeal.

7. The Respondent opposes the motion through the replying affidavit of Kevin Ng’ethe to the effect that there has been inordinate delay in filing the motion seeking the late admission of the memorandum and record of appeal and that the delay has not been adequately explained. He goes on to contend that delay in serving the record of appeal for several months after filing was proof of a vexatious litigant, intent on abusing the court process. That since March 15, 2021 when the record of appeal was filed, the Appellant counsel took no action to remedy the situation with respect to the appeal and only moved the court nine months after parties had taken directions concerning the Respondent’s motion. He further deposes that despite being aware that there was no proper appeal filed, the Appellant failed to remedy the situation by amending the motion in HC Misc. Civil Application No. 545 of 2019 appropriately.

8. Counsel equally objects that the Appellant’s motion is res judicata as certain issues raised in the instant motion were addressed in HC Misc. Civil Application No. 545 of 2019. He stresses that the Appellant ought not to be allowed to litigate in installment while keeping the Respondent in a state of perpetual anxiety and that failure to file an appeal within time is not a technicality but goes to the jurisdiction of the court. That no measure of costs can adequately remedy the prejudice which the Respondent will suffer on account of the unexplained delay by the Appellant if the instant motion is allowed. In conclusion he asserts that the instant motion is incompetent, and an abuse of the court process and ought to be dismissed with costs.

9. Both motions were canvassed by way of written submissions in which counsel reiterated their affidavit material and cited legal authorities in support of their rival positions. On the part of the Respondent submitting on its motion, counsel anchored his submission on Section 79G of the Civil Procedure Act (CPA), the decisions in Hamisa Swaleh v Rama Swaleh & Another [2019] eKLR and Joseph Michael Mwenja v Woolmatt Limited [2019] eKLR to argue that the appeal herein is a nullity ab intio having been filed one year seven months after the delivery of the impugned judgment without leave of the court. It was further submitted that Order 42 Rule 12 of the Civil Procedure Rules (CPR) requires that a memorandum of appeal be served within seven days after directions have been issued under Section 79B of the Civil Procedure Act (CPA). That the appeal was admitted on May 8, 2021 and failure to serve the foregoing pleadings for over six months is inexcusable. That filing the memorandum of appeal out of time and failing to serve the same renders the appeal an abuse of the court process and hence the appeal ought to be struck out with costs.

10. With respect to the Appellant’s motion, counsel called to aid the decision in Pop-in (Kenya) Ltd & 3 others v Habib Bank AG Zurich [1990] eKLR to argue that that the Appellant’s motion is res judicata as the matters related thereto were argued in the earlier miscellaneous cause.

11. On the merits of the Appellant’s motion counsel anchored his submissions on the provisions of Section 79G of the Civil Procedure Act (CPA) and the decision in Evans Kiptoo v Reinhard Omwoyo Omwoyo [2021] eKLR concerning the considerations in an application for extension of time within which to file appeal. Concerning delay and explanation proffered, counsel relied on Nyinyaga Kavole v Mailu Gideon [2019] eKLR, Joseph Mayodi Adenya v Herman Dennis Lusuli [2006] eKLR and Odoyo Osodo v Rael Obara Ojuok & 4 Others [2017] eKLR argue that delay herein is inordinate, inexcusable and amounts to an abuse of the court process.

12. He asserts that the Appellant was only jolted to action after nine months of filing the record of appeal and after directions on the Respondent’s motion had been taken. Hence the Appellant’s motion is an attempt to defeat the Respondent’s motion. It was further submitted that there is no basis whatsoever for the court to exercise discretion in favour of the Appellant given the length of delay and explanation proffered. In conclusion counsel placed reliance on the decision in Clerk of the National Assembly, Kenneth O. Marende (Rtd) Speaker of the National Assembly & 207 others v Timothy Njoya & 22 others [2015] eKLR to submit that litigation ought to come to an end and that the Appellant’s failures put the Respondent to prejudice. The court was urged dismiss the Appellant’s motion and allow the Respondent’s motion.

13. Submitting on the Respondent’s motion counsel for the Appellant while calling to aid the decisions in Stecol Corporation Limited v Susan Awour Mudem [2021] eKLR and Bank of Africa Kenya Limited v Put Sarajevo General Engineering Co. Ltd & 2 others [2018] eKLR submitted that delay in filing the memorandum of appeal was inadvertent and reiterated his affidavit material concerning delay. And regarding failure to file the memorandum of appeal he asserted that mistakes are bound to happen from time to time as humans are fallible and that a litigant ought not to be driven from the seat of justice owing to human error. Counsel reiterated that the appeal was ready for filing as of 15. 08. 2019 but for an inadvertent mistake was filed late and ought not to be struck out.

14. He argued that the Respondent will not suffer any prejudice if his motion is dismissed and reiterated that the Appellant’s counsel was still holding the security for the stay of execution pending appeal because the Respondent’s counsel was yet to sign account opening forms. It was further pointed out that since the record of appeal has been filed and the appeal admitted there will be no further delay in hearing the appeal on its merit in the interest of justice. Counsel contended that striking out of the appeal will prejudice the Appellant by condemning it to pay the decretal sum, yet it has an arguable appeal. In conclusion while invoking the provisions of Article 159(2)(d) of the Constitution, Section 79G of the Civil Procedure Act (CPA) and the decision in Francis Likhabila v Barclays Bank of Kenya [2020] eKLR counsel submitted that the court ought to exercise its discretion given the special circumstances of the matter by dismissing the Respondent’s motion. The Appellant failed to file submissions in respect of its motion despite being given ample opportunity to do so.

15. The Court has considered the rival motions, material canvassed in respect of the same and submissions in respect of the motions. The background to the two motions is a set of peculiar circumstances. The Court is called upon to determine whether to strike out or admit the appeal herein, which was admittedly filed out of time and without leave. These issues can and will be simultaneously determined. But first, the court needs to address the plea of res judicata raised by the Respondent.

16. In the case of John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure and 3 others [2015] eKLR, the Court of Appeal considered in extenso the application of the doctrine of res judicata generally, and to constitutional petitions specifically. The Court had this to say:“The doctrine of res judicata in Kenyan law is embodied or anchored on Section 7 of the Civil Procedure Act. It is in these terms: -“7. Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally. (see Karia & another v the Attorney General and Others [2005] 1 EA 83).Res judicata is a subject which is not at all novel. It is a discourse on which a lot of judicial ink has been spilt and is now sufficiently settled. We therefore do not intend to re-invent any new wheel. We can however do no better than reproduce the re-indention of the doctrine many centuries ago as captured in the case of Henderson v Henderson [1843] 67 ER 313: -“…..where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time….”See also Kamunye & others v Pioneer General Assurance Society Ltd [1971] E.A. 263. Simply put res judicata is essentially a bar to subsequent proceedings involving same issue as had been finally and conclusively decided by a competent court in a prior suit between the same parties or their representatives.The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application, …….The doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata. Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.”See also Gurbacham v Yowani Ekori [1958] EA 450; George Kihara Mbiyu v Margaret Njeri & 15 others [2018] eKLR.

17. The court has taken the liberty of perusing the motion and subsequent ruling in HC Misc. Civil Application No. 545 of 2019 annexed as “KN1” & “KN3”. Obviously, the Appellant’s present motion seeks to regularize the instant appeal that was filed out of time and is premised on Section 79G of the Civil Procedure Act (CPA) whereas the motion in HC Misc. Civil Application No. 545 of 2019 though filed as a miscellaneous cause and expressed to be brought under Section 79G of the Civil Procedure Act (CPA) & Order 42 Rule 6 of the Civil Procedure Rules specially sought to stay execution of the judgment and decree in Nairobi Milimani CMCC No. 6427 of 2013. The Appellant either by commission or omission did not seek leave in HC Misc. Civil Application No. 545 of 2019 to file an appeal out of time. It therefore seems that the two motions are different albeit arising from almost similar facts. In the circumstances, the court is not persuaded that the plea of res judicata rule is well taken in this instance.

18. Moving on to the substantive issues, Section 79G of the Civil Procedure Act (CPA) 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 good and sufficient cause for not filing the appeal in time.”

19. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways [2003] eKLR, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which was in pari materia with Section 79G of the Civil Procedure Act, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:“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 the general matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent of the application is granted.”

20. While the discretion of the court is unfettered, a successful applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion in his favor. On the question of the exercise of judicial discretion, the Supreme Court observed in the case of Telkom Kenya Limited v John Ochanda & 996 others [2015] eKLR that:“In instances where there is delay in filing the notice of appeal, this Court has inherent jurisdiction to admit such appeal, provided sufficient explanation is proffered for the cause of delay. The design and objective of the Supreme Court Rules is to ensure accessibility, fairness and efficiency in relation to this Court. Parties should comply with the procedure, rather than look to the Court’s discretion in curing the pleadings before it. This Court’s position is that the circumstances of each case are to be evaluated, as a basis for arriving at a decision to intervene, in instances where full compliance with procedure has not taken place….It is this Court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties. However, the Court will consider the relevant circumstances surrounding a particular case and will conscientiously ascertain the best course. It is to be borne in mind that rules of procedure are not irrelevant but are the handmaiden of justice that facilitate the right of access to justice in the terms of Article 48 of the Constitution….”See also Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others [2019] eKLR.

21. The same court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that:“(T)he underlying principles a court should consider in exercise of such discretion include; 1. Extension of time is not a right of any 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 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 Respondent if the extension is granted;

6. Whether the application has been brought without undue delay.

7. ......”

See also County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR.

22. It is the court’s view that the words “an appeal may be admitted out of time” in Section 79G, appears to admit both retrospective and prospective applications. So that leave under the section may be sought before or after a memorandum of appeal is filed. It is not disputed that the impugned judgment of the lower court was delivered on 12. 07. 2019 therefore as rightly submitted by the Respondent the appeal ought to have been filed on August 12, 2019. A review of the Judiciary Case Tracking System (CTS) the shows that the record and memorandum of appeal were filed on February 11, 2021 and not 05. 03. 2021 as purported by the Appellant. Meanwhile, it is equally not contested that Appellant upon delivery the lower court judgment had moved with alacrity to seek stay of execution pending appeal in HC Misc. Civil Application No. 545 of 2019 in which ruling was delivered on May 7, 2020.

23. As such the entire duration of delay on the part of the Appellant in failing to comply with the provisions of Section 79G of the Civil Procedure Act (CPA) is nineteen months whereas upon filing the memorandum of appeal it took Appellant a further nine months to file the motion seeking to admit the appeal filed on February 11, 2021 out of time. Evidently the Appellant was jolted into action, albeit delayed by 5 months, by the Respondent’s dated July 22, 2021. Interestingly directions on the appeal had been taken on June 22, 2021 and the appeal certified ready for hearing. This was obviously done in the mistaken belief that the appeal before the court was competent. Surprisingly, counsel for the Respondent did not raise any objection concerning the competency of the appeal at the time. So that, inasmuch as the Appellant’s counsel must bear the highest level of blame for the debacle herein, there were also honest lapses and or mistakes on the part of the Court itself and the Respondent’s advocate.

24. Apaloo, JA (as he then was) famously stated in Phillip Kiptoo Chemwolo and & another v Augustine Kubede [1986] eKLR that: -“I think a distinguished equity judge has said:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merit.”I think the broad equity approach to this matter is that unless there is 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 purpose of deciding the rights of parties and not for the purpose of imposing discipline....”

25. The Appellant has attempted to explain the delay in filing the appeal by stating that the same was an honest oversight on the part of counsel that ought not to be visited on the Appellant. Section 79G of the Civil Procedure Act requires an applicant to demonstrate ‘good and sufficient cause’ for the failure to file appeal on time. It may well be, that the lengthy delay in this case prior to the filing of the Respondent’s motion was due to an inadvertent mistake on the part of the Appellant’s counsel but the delay in bringing the Appellant’s motion or serving his pleadings though shorter, is unexplained. It seems however that the Appellant’s counsel had acted promptly to file the miscellaneous cause and was evidently intending to file an appeal, which inexplicably was not done on time, nor enlargement of time applied for.

26. The Court of Appeal in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others [2019] KLR addressed itself on the question of delay as follows:-“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There have to be valid and clear reasons, upon which discretion can be favourably exercisable…”

27. The total delay herein is inordinate but because the appeal could potentially be heard and justice still be done between the parties, the court is wary, despite noting the tardy conduct of counsel for the Appellant, to shut out the Appellant. Moreover, the grounds of appeal in the memorandum of appeal do not appear frivolous and the appeal appears arguable ex facie. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited [2020] eKLR stated that an arguable appeal:“… may not succeed as in law an arguable appeal need not succeed so long as it raises a bona fide issue for determination by the Court.”

28. In Vishva’s case, the Court emphasized the right of appeal in the following terms:“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] 2 EA 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…”

29. While the Appellant’s delay in this case is inordinate and the explanation proffered by counsel barely acceptable, in the court’s view any prejudice to the Respondent can be compensated through costs. The court will in the interest of justice allow the Appellant’s motion while declining the Respondent’s motion. However, the costs in respect of both motions are awarded to the Respondent in any event. As the directions earlier taken on the appeal were erroneous, given the facts emerging herein, fresh directions on the appeal will be issued now that the appeal has been regularized.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 17THDAY OF NOVEMBER 2022C.MEOLIJUDGEIn the presence of:Mr. Kiplangat for the AppellantMr. Orina for the RespondentC/A: Carol