[2023] KEHC 25423 (KLR)

Indigo Telcom Limited v Independent Electoral and Boundaries Commission & 5 others (Commercial Case 391 of 2015) [2023] KEHC 25423 (KLR) (Commercial and Tax) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25423 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Case 391 of 2015

A Mabeya, J

November 20, 2023

Between

Indigo Telcom Limited

Plaintiff

and

Independent Electoral and Boundaries Commission

1st Defendant

Ezra Chiloba

2nd Defendant

Marjan Hussein Marjan

3rd Defendant

Betty Sungura- Nyabuto

4th Defendant

Osman Hassan Ibrahim

5th Defendant

Praxedes Tororey

6th Defendant

Ruling

1. Before Court is the application dated 16/3/2023. The same was brought under sections 1A, 1B & 3A of the Civil Procedure Act, section 7 of the appellate jurisdiction Act, Order 50 rules 1 and 6 of the Civil Procedure rules.

2. The application sought for the extension of time within which to file and serve a notice of appeal against the judgment of this Court delivered on 30/9/2022. That the notice of appeal already filed be deemed to be as duly filed.

3. In support of the application, the applicant relied on the grounds on the face of it and on the supporting affidavit of James K Muthui sworn on 16/3/2023. It was the applicant’s contention that the Court dismissed its case on 30/9/2022 and it intended to appeal against that decision.

4. In explaining the delay, it was averred that the advocate who had the conduct of the matter had not filed the notice of appeal although she had informed the applicant’s counsel that the same had been filed together with the request for proceedings. That upon discovery of the failure to file, the applicant filed the notice of appeal on 14/3/2023 without further delay. It was averred that the appeal was arguable and the applicant would suffer great injustice if the orders sought are not granted. That the delay was not intended and was not inordinate and the error of the advocate should not be visited on the client.

5. The 1st defendant opposed the application vide a replying affidavit of Chrispine Owiye sworn on 19/4/2023. It was averred that the plaintiff had not served the 1st defendant on time as required by Rule 75(2) of the Court of Appeal Rules. That no good or sufficient cause was provided to explain the delay in filing the notice of appeal. It was contended that the delay of 6 months was inordinate and that the draft memorandum of appeal annexed to the application did not disclose an arguable appeal. The application was termed as incompetent and an abuse to the court process.

6. On their part, the 2nd to 5th defendant filed a response to the application via a replying affidavit sworn on 10/5/2023 by Edwin M Mukele. He averred that the defendants were served with the notice of appeal on 20/3/2023, 6 months after the judgment was delivered.

7. According to him, there had been no sufficient cause for failing to serve the notice within the stipulated timelines. That 6months delay was inordinate and inexcusable and the defendants would suffer great prejudice if the orders sought are granted.

8. The application was canvassed by way of written submissions which have been considered.

9. The applicant submitted that it was deserving of the orders sought as the delay in filing the notice of appeal was caused by an error of the part of the Counsel who had the conduct of the matter. That upon discovery of the error, the applicant’s advocates had acted promptly without any further delay and the interest of justice would dictate granting the orders sought.

10. It was further submitted that the delay was not inordinate or intentional as it was caused by error of Counsel. That the appeal raised matters of general public importance and the applicants would not suffer any prejudice that cannot not be compensated by costs.

11. It was submitted for the respondents that the applicant had not provided any good or sufficient reason for the delay as the applicant ought to have been keen and diligent in following up on its case. That the mere allegation that the mistake was on the part of Counsel was not sufficient enough to invoke the court’s jurisdiction.

12. That the delay of five months was inordinate and appeal cannot be said to be of public importance since it involved a private contractual arrangement between the applicant and the 1st defendant.

13. I have considered the parties’ contestations and the submissions on record. The applicant seeks leave to have the notice of appeal admitted out of time.

14. Rule 75 of the Court of Appeal Rules provides: -“1. Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in duplicate with the registrar of the superior court.2. Every such notice shall, subject to rules 84 and 97, be so lodged within fourteen days of the date of the decision against which it is desired to appeal.”

15. It is not in dispute that judgment in this matter was delivered on 30/9/2022. The notice of appeal was filed on 14/3/2023, nearly six month’s later.

16. In Thuita Mwangi v Kenya Airways [2003] eKLR, the Court of Appeal 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 generally 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 of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”

17. The principles applicable in an application for leave out of time were also considered by the Supreme Court in Nicholas Kiptoo Korir Arap Salat Vs. IEBC and 7 Others [2014] eKLR as follows: -“The 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. ...”

18. From the foregoing, the Court will have to apply the said principles in determining the present application. These are; the duration of the delay, the reason for the delay, the prejudice that would be occasioned to the respondents and merit of the appeal.

19. In the present case, since the judgment was delivered on 30/9/2022, the notice of appeal ought to have been filed by the 14/10/2022. The notice of appeal was however filed on 14/3/2023, meaning a delay of over 5 months. Even if we were to take into consideration the excluded period, under Order 50 rule 4 of between 21/12/2022 and 13/1/2023, in the computation of time, the delay will still be in excess of 4 months. That in my view was in ordinate delay. The same requires an explanation.

20. In explaining the delay, it was explained that it was the advocate who was conducting the matter who failed to take steps to lodge the appeal. The law firm representing the applicant admitted that the default was attributable to it. It was the applicant’s contention is that the default of its advocates should not be visited upon it.

21. The respondents opposed the application on the ground that the delay was inordinate and the reasons advanced by the applicant are not sufficient.

22. I am of the view that, it is not uncommon that advocates in law firms are susceptible to making grave mistakes. They may fail to report the proper steps taken in a litigation. The question this Court has to answer is, should it let the client pursue an action for professional negligence in those circumstances? My view is that the Court should be very restrained from taking that route. That route should be taken only when it is clear that the delay is so inordinate and to allow an extension it would extremely prejudice the opposite party.

23. In the present case, the delay was inordinate delay. However, there was no evidence on the part of the respondents that they would be exposed to prejudice that cannot be compensated by an award of costs if the extension sought was granted.

24. In the interests of justice, this matter raises very important issues of public interest. What happens where a public entity decides to take a shortcut in favour of a preferred private investor to the exclusion of others? Should the law be applied strictly to prevent the private sector players from enticing public officers and/or entities from engaging in wrongful, irregular and acts that amount to an illegality? These are issues in my view that require to be examined, interrogated on and pronounced in a resounding manner by our esteemed Appellate Court.

25. Accordingly, I am inclined to allow the application to give that esteemed Court an opportunity to interrogate the matter. I cannot in my position examine whether or not the intended appeal is arguable having in mind that I am convinced that I was right in my judgment. Talking for myself, the appeal is unarguable. However, that is the role and preserve of the Court of Appeal.

26. Accordingly, the Court finds merit in the application and hereby allows the same as prayed. However, the applicant shall bear the costs of the application.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2023. A. MABEYA, FCI ArbJUDGE