[2023] KECA 777 (KLR)

Hakika Transport Services Limited v Isaac Onyango & Company Advocates (Civil Application E010 of 2023) [2023] KECA 777 (KLR) (23 June 2023) (Ruling)

Neutral citation: [2023] KECA 777 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Application E010 of 2023

JW Lessit, JA

June 23, 2023

Between

Hakika Transport Services Limited

Applicant

and

Isaac Onyango & Company Advocates

Respondent

(An application for leave to file an appeal out of time from the ruling of the Employment and Labour Relations Court at Mombasa delivered by Hon. Lady Justice Linnet Ndolo on 23rd September, 2021 in Misc. Application No. E019, E20, AND E022 of 2021 Miscellaneous Application E021 of 2021 )

Ruling

1. Hakika Transport Services Limited, the applicant, by a Notice of Motion dated 20th February of 2023 brought pursuant to Rules 4, 41 and 84(2) of the Court of Appeal Rules, 2022 seeks two orders:a.That the honourable be pleased to extend time within which to file and serve the Memorandum of Appeal and the Record of Appeal.b.That the Memorandum of Appeal and Record of Appeal filed and served out of time (if filed before this application is heard) be deemed as duly filed.c.Costs of the application be provided for.

2. The grounds for the application are on the face of the application and the supporting affidavit sworn by Abdulhakim Abeid, the Director of the applicant. The applicant avers that it intends to appeal against the ruling dated 23rd September 2021 delivered in the Employment and Labour Relations Court (ELRC) in Miscellaneous Application No. E019 of 2021. That the applicant failed to file the record of appeal within 60 days as required by law. It is averred that the Notice of Appeal was lodged on October 7, 2021.

3. Isaac Onyango & Company Advocates, therespondent opposes the application vide a replying affidavit dated March 17, 2023. It is deposed that the application has no merit as the facts in support of the application contains misapprehension of the law and facts; is made in bad faith; is frivolous, vexatious and an abuse of the process and integrity of the court. That the applicant has not applied for the typed proceedings of the Superior Court is incompetent and bad in law.

4. When the application was called out for virtual hearing before me on the March 22, 2023, learned counsel Mr. David Wachenje was present for the applicant and learned counsel Mr. Isaac Onyango for the respondent. Mr. Wachenje applied to have the parties argue the current application and to have the ruling therefrom to apply to Civil Application Nos. 11 of 2023, 12 of 2023 and 13 of 2023. He urged that the three application arise from three rulings delivered on the same day,September 23, 2021, by the ELRC, arising from taxation of an Advocate Client Bill of Costs. Mr. Onyango did not oppose the application and therefor counsel argued the instant application, Civil Application No. 10 of 2023. Each counsel highlighted their written submissions.

5. I have considered the application dated February 20, 2023. I have considered the submissions by counsel as well as the affidavits for and against the application.

6. My mandate to intervene has been invoked on the main under Rule 4 of the Rules. That Rule provides.“Rule 4 of this Court’s Rules(the Rules) provides as follows:The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended”.

7. The case of Donald O. Raballa v Judicial Service Commission & another[2018] eKLR discussed the power of the court to extend time and stated thus:“From a long line of authorities including Leo Sila Mutiso v Rose Hellen Wangari Mwangi, Civil Application Nai 251 of 1997 the single judge has unfettered discretion to consider an application for extension of time and generally the matters taken into account are 'the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted”

8. The principles that guide the court in the exercise of its mandate under the said rule are set out in the case law. In Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR while referring to other authorities observed (at paragraph 12):“The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In //Henry Mukora Mwangi v Charles Gichina Mwangi//- Civil Application No Nai 26 of 2004, this court held:-“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi v Kenya Airways Ltd [2003] KLR 486 in which this court stated:-“Over the years, the court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance inLeo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No Nai. 255 of 1997 (unreported), the Court expressed itself thus:- “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.” [Emphasis added]

9. It is imperative for me to consider the factors falling for consideration in an application of this nature as well before finally deciding either way. The first factor to consider is the length of the delay. Mr. Wachenje admitted that there was delay in filing the Memorandum and the Record of Appeal, even though he did not expressly state the length of delay. Mr. Onyango relied on the replying affidavit dated March 17, 2023and the written submissions dated the same day. He highlighted his submissions. He urged that the ruling intended to be appealed was delivered on the September 23, 2021and 60 days for lodging the appeal lapsed on December 6, 2021. He urged that Rule 85 of the Rules, and the Notice of Appeal stood dismissed. For that proposition he relied on My Properties Ltd v Kibe and another[2017] eKLR. The delay involved in lodging of the appeal, from December 6, 2021 when the time lapsed, to February 20, 2023 when the application to extend time was filed, is a period of 14 months.

10. The next factor falling for consideration is the explanation that the Applicants has proffered for the failure to initiate its intended appellate process timeously. Mr. Wachenje relied on the supporting affidavit sworn by the Director of the Applicant and his written submissions dated March 15, 2023, which he highlighted. On the issue of delay, counsel urged that the advocate on record for the Applicant at the material time sought advice from other advocates on how to proceed with the matter, resulting in delay. That even though the Notice of Appeal was filed in time, the Memorandum and the Record of Appeal were not. He urged that the typed proceedings of the Superior Court were sought within the 30 days prescribed. The explanation given for the delay was an inadvertent error on the part of the previous counsel, firm of Nahban Swaleh & Company Advocates, that delayed in lodging the appeal as the firm consulted other advocates.It averred that the delay is innocent and inadvertent, and was neither deliberate nor meant to obstruct the course of justice. It is averred that it has demonstrated due diligence, through preparation of the Memorandum of Appeal by its new advocates and is compiling the Record of Appeal, which was intended to be filed and served within 7 days, albeit out of time.

11. Mr. Onyango opposed the application and urged that the delay is inordinate, and that the application was made in bad faith. He relied on Rule 85 of thisCourt’s Rules to argue that the Notice of Appeal died a natural death, was incapable of being resuscitated and so the application is incompetent. He cited County Executive of Kisumu v Countu Government of Kisumu & 8 others[2017] eKLR. Counsel, placing reliance on Chandaria Industries Ltd v Sonal Holdings and another [2014] eKLR, for the proposition that once a party is in default he must place material to persuade the court to exercise its discretion in his favour. He urged that an affidavit from the advocate alleged to be at fault was such material and the same was not provided.

12. I have considered the submissions of counsel on this factor. The applicant has blamed the previous counsel of delay in filing the necessary papers in this case. The burden was on the applicant to place material that would justify this court finding in its favour that indeed tis advocate was to blame for the delay, as alleged. As the respondent submitted, no material was placed before the court, especially from the advocate under accusation that he was to blame as alleged. Even if the affidavit from that advocate may be hard in coming, some other material to show the manner in which the applicant exercised due diligence in pursuit of its case, and show why the previous counsel alone was to blame.

13. The applicant made heavy weather the blunder by its advocate.What falls for thiscourt’s determination is whether or not the advocate’s blunder leading to the delay in filing the appeal is a reasonable ground for granting orders of this nature. The circumstances disclosed in this case do not amount to a mistake of counsel but inaction after receiving instructions to act in the matter.The client has a duty to take due diligence and follow up its case with his counsel, and forestall such omissions as delay. It is not a good excuse to say that the counsel on record delayed to take action, especially where the delay is several months, as in this case. In the case of Rajesh Rughani v Fifty Investment Ltd. &another (2005) eKLR this court held:“It is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter. If the Advocate was simply guilty of inaction that is not excusable mistake which thecourt may consider with some sympathy”.

14. I find that the delay in this application was inordinate, being 14 months. I find that the explanation given for the delay is insufficient and unreasonable.

15. Having found that the delay was inordinate; that no reasonable explanation was given for the delay; and that the explanation was insufficient I see no need to go into the other factors of the arguability of the intended appeal and the prejudice the respondent stands to suffer.

16. I find that:1. The application dated 20th February of 2023 lacks in merit and is dismissed in its entirety.2. As the parties had agreed, this ruling will apply to the applications dated 20th February of 2023 in each of the files namely, Civil Application No. 11 of 2023, 12 of 2023 and Civil Application No. 13 of 2023. 3.The Deputy Registrar of this Court will cause a copy of this ruling be placed in the case files in No. (2) herein above.

DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE, 2023. J. LESIIT.................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR