[2018] KECA 853 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

(CORAM: HANNAH OKWENGU, JA. (IN CHAMBERS)

CIVIL APPLICATION NO. 356 OF 2012

BETWEEN

DELPHINE KANUU KAMAU.............APPELLANT

AND

FINA BANK LIMITED.......................RESPONDENT

(Application for extension of time to file and serve the notice of appeal and

record of appeal in Civil Appeal No. 356 of 2012 arising out of the

ruling and order (Wendoh, J) delivered on the 1st of August, 2012

in

NAKURU HCCC NO. 227 OF 2011)

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

RULING

[1] By a notice of motion dated 23rd July, 2013 Delphine Kanuu Kamau,who is the appellant in Civil Appeal No.356 of 2012 (herein referred to as the applicant) sought orders from this Court as follows:

“(i) That the applicants notice of appeal dated 3rd August, 2012 that had been filed and served upon the respondent be deemed to have been duly filed and served within time.

(ii) That the appellant’s record of appeal filed on 20th September, 2012 and already served on the respondent be deemed to have been duly filed and served within time”.

[2]In his affidavit and that of his advocate sworn in support of the motion the appellant explained that the notice of appeal was filed in Court within time on the 6th of August, 2012, but was only signed as lodged by the Deputy Registrar on 8th of August, 2012; that the notice of appeal was subsequently served on the respondents advocate on the 15th of August, 2012 which was within 7 days as required under rule 77(1) of the Court of Appeal Rules; that the appellant also lodged a letter bespeaking proceedings from the High Court but the letter was inadvertently not copied to the respondents advocates; and that the letter was only served on the respondents advocate on the 23rd of August, 2012 as an annexture.

[3] The appellant further stated that the appeal was lodged 2 days out of time because he was unable to raise the necessary funds; that when he availed the funds two days later, the record of appeal was rejected by the registry as it was not prepared as required. The appellant pleads that he has an arguable appeal with a high probability of success and therefore urges the Court to allow his application.

[4]Learned Counsel, Mr. Kanyi Ngure, who appeared for the appellant urged the Court to grant the application for extension of time underRule 4of theCourt of Appeal Rules.Counsel contended that although the letter bespeaking proceedings was not copied to the respondent’s advocate, the respondent was fully aware of the request for typing of proceedings as the letter was served on it as an annexture in an injunction application.

[5] Counsel for the appellant further urged the Court to excuse the two days delay in filing the record of appeal, as the same was not inordinate and had been explained by the appellant. Counsel relied on Mwangi vs Joshi [1988] KLR 618 in support of his proposition that where the delay is very short and there is an acceptable excuse for the delay, the appellant should not be deprived of his right of appeal by the Court refusing to grant him extension of time; Kenya Commercial Bank Limited vs Kenya Planters Corporative Union [2010] eKLR was also relied for the principles regarding extension of time, including the Court being enjoined to consider the overriding objectives under section 3A and 3B of the Appellate Jurisdiction Act so as to do justice; and Trust Bank Limited vs Amalo Company Limited [2002] 2KLR 627 for the proposition that the principle of substantive justice should prevail and simple technical errors should not necessarily deter a litigant from pursuing his right.

[6] The respondent opposed the appeal through a replying affidavit that was sworn by his advocate, Daniel Kahuthia Njoroge on 30th October, 2013. Learned Counsel, Mr. D. Makori, who appeared for the respondent reiterated the contents of the replying affidavit maintaining that the appellants motion was defective as the appellant had not sought extension of time but was merely seeking to have his appeal deemed as filed within time. Counsel contended that the appellant should have first sought extension of time.

[7] Counsel submitted that the record of appeal was filed late by three days if the certificate of delay was valid. It was however maintained that the certificate was not valid, as the appellant had not copied the letter bespeaking proceedings to the respondent. The appellant could not therefore benefit from the provisions of section 77of theCourt of Appeal Rules. Counsel for the respondent argued that the overriding objective in the Appellate Jurisdiction Act cannot be used as a panacea for all omission, and that there was no evidence adduced by the appellant in support of the alleged financial difficulties, to justify the delay as excusable. Counsel pointed out that the suit was filed way back in 2012 and the appellant continued to enjoy injunctive orders to the prejudice of the respondent. He therefore urged the Court to dismiss the application.

[8] Section 4of theCourt of Appeal Rulesallows the Court to extend the time limited by the rules or by any decision of the Court for the doing of any act “on such terms as it thinks just.” This rule provides an unfettered discretion to the Court to extend time. However, it is common ground that such discretion must be exercised judicially. In Leo Sila Mutiso vs Rose Hellen Wangari Mwangi Civil Appeal No. Nai 255 of 1997, the Court gave guidance on the exercise of this discretion 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 in general the 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 for the appeal succeeding if the application is granted; and fourthly, the decree of prejudice to the respondent if the application is granted”.

[9]In Mwangi v Kenya Airways Ltd [2003] 486, the Court referring to the above quote explained that guidance further as follows:

“We do not understand this list to be exhaustive; it was not meant to be exhaustive and that is clear from the use of the words “in general”. Rule 4 gives a single judge an unfettered discretion so long as the discretion is exercised judicially, a judge will be perfectly entitled to consider any other factor outside those listed in the paragraph we have quoted above so long as the factor is relevant to the issue being considered. To limit such issues, only to the four set out in the paragraph would be to fetter the discretion of single judge and as we have pointed out, the rule itself gives a discretion which is not fettered in any way”.

[10] Thus the discretion is only fettered by the requirement that it be exercised judicially and this will depend on the circumstances before the learned judge. The appellant herein contends that he was only late by two days in filing the notice of appeal; that although service of the record of appeal was done within time, the letter bespeaking proceedings from the High Court was inadvertently not copied to the respondents advocate; and that the letter was actually served on the respondents advocate a few days after the filing of the notice of appeal as an annexture in an application for injunction.

[11] It is evident that the delay herein was not inordinate and that the appellant has given a plausible explanation. Regarding the respondents contention that the appellants motion is defective as the appellant did not obtain the leave of the Court to appeal out of time, section 4 of the Court of Appeal Rules, allows the Court to extend the time limited by the rules or by any decision of the Court for the doing of any act authorized or required by the rules “whether before or after the doing of the act”.

[12] This means that in dealing with an application for extension of time, the Court has jurisdiction to deem the act to have been duly filed and served within time. However, although it is clear from the heading that the appellant’s motion is for extension and/or enlargement of time, the prayers in the motion as set out earlier in this ruling are poorly worded. There is no specific prayer for extension of time or leave to file the appeal out of time. Instead the prayers sought is for having the notice and record of appeal “already filed and served” to be deemed to have been filed and served within time. Nevertheless, notwithstanding the poorly worded prayers, it is clear that the appellant is seeking extension of time. Therefore, it is appropriate that this Court exercises substantial justice by reading in the prayer for extension of time.

[13]The respondent has complained that it is being prejudiced as the appellant is enjoying an order of stay of execution which order is preventing the respondent from exercising its statutory power of sale. Although I appreciate that the effect of this ruling will be to further delay the respondent from reaping the fruits of the judgment delivered in his favour by the High Court that judgment being the subject of the intended appeal, it is only fair that the appellant be given the opportunity to be heard on the appeal.

[14] The upshot of the above is that I find this an appropriate case in which the ends of justice will be met by granting the appellant extension of time. Accordingly, the appeal and the notice of appeal are hereby deemed as properly filed and served.

Finally, I wish to express my profuse apologies to the parties and counsel for the delay in the delivery of this ruling. This was due to a mix-up in my judgment files that resulted in this file being kept away.

Dated and delivered at Nakuru this 31st day of January, 2018.

HANNAH OKWENGU

..................................

JUDGE OF APPEAL

I certify that this isa true copy of the original.

DEPUTY REGISTRAR.