[2008] KECA 31 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLI NO. 184 OF 2008

INDUSTRIAL DISTRIBUTORS LTD….….……...…………… 1ST APPLICANT

SUMAN SENNIK ………………………..…….………………. 2ND APPLICANT

AND

JAGDISH DEVSHI SHAH ………….….……….………….. 1ST RESPONDENT

DESBRO POLYMERS LTD………….………..…...……… 2ND RESPONDENT

(An application for extension of time to file and serve the Notice and Record of Appeal out of time in an intended Appeal from the Ruling of the High Court of Kenya at Milimani Commercial Courts Nairobi (Onyango Otieno J.) dated 22nd May 2000 and 18th May 2001

in

H.C.C.C. NO. 1851 OF 1999

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

RULING

This is an application for an extension of time within which to file two notices of appeal and a record of appeal outside the time stipulated in the Rules of this Court. The application is expressed to be brought, on the main, under rule 4 of the Court of Appeal Rules. The rule gives this Court power to extend the time limited for the doing of any act authorized or required by the rules whether before or after the expiration of such time. The jurisdiction exercisable under that rule is discretionary and is unfettered.

There are two applicants, Industrial Distributors Limited and Suman Sennik. They are the first and 2nd defendants, respectively in Milimani High Court Civil Case No.1851 of 1999, still pending before the superior court. The respondents herein, Jagdish Devishi Shah and Desbro Polymers Limited, are named the plaintiffs. On 22nd May 2000 and 18th May 2001, the superior court made orders in that suit against which the applicants were desirous of challenging by way of an appeal. So on 6th June 2000 and 4th June 2001, they filed notices of appeal pursuant to rule 74 of this Court’s rules indicating their desire of appealing against those orders. The notices of appeal were timeous and so was a record of appeal which was lodged thereafter. The appeal was registered as Civil Appeal No. 7 of 2002.

However on being served with that record of appeal, the respondents discovered that certain primary documents were omitted from the record of appeal, and consequently by its application dated 8th December, 2003, moved this Court for an order striking out both the record of appeal and notices of appeal. That application was not prosecuted. The application and the appeal were listed for a hearing on 8th July 2008. When the appeal was called, Mr. Rustam Hira, counsel on record for the applicants who then appeared for them as the appellants, conceded the record of appeal for that appeal was incurably defective, and as a consequence the appeal was struck out as incompetent.

This application was filed on 18th July 2008, indicating that the applicants are still desirous of challenging the two orders of the superior court. I do not know the nature and purport of the two orders. The main grounds proferred for the application are, firstly, that their earlier appeal was struck out as incompetent and was therefore not decided on the merits. Secondly, that the application was brought promptly. Thirdly, that no prejudice shall be caused to the respondent if the application is granted.

I have no doubt whatsoever, that the applicants brought this application promptly after their appeal was struck out as incompetent. Their application has, however, been opposed on the main ground that the applicants were dilatory in taking steps to regularize their appeal after learning that the record of that appeal was incurably defective. It is true that the applicants did not take immediate steps to regularize the appeal as alleged. The application to strike out the appeal was filed in Court on 8th December, 2003, and soon thereafter was served on Mr. Hira for the applicants. He did not take any steps on record until 27th June 2005, over one and half years later, when he filed an application for leave to file a supplementary record of appeal. That application was struck out as incompetent as the rule cited under which the application was brought did not empower the Court to grant the orders the applicants had prayed for. The applicants had cited rules 42 and 85 of the Court of Appeal Rules.

No further steps were taken in the appeal until 8th July 2008, when the appeal was struck out. Mr. Nyachoti, for the respondents submitted before me that the delay before bringing the application for leave to file a supplementary record, and also failure to take any step thereafter, were not explained. In his view, therefore, the applicants are undeserving of the exercise of the Court’s discretion in their favour. He cited several authorities on the question of delay to buttress his submission. In particular he referred to the case of Patrick Wambua Kivuva v. Martha Wangui Muriithi, Civil Application No. Nai. 309 of 2005, in which Githinji J.A took an adverse view of the applicant’s delay in taking any steps in filing a competent appeal. The other decision he emphasized was Beatrice Wambui Kigondu & 4 Others v. Beatrice Muthoni Thumbi Civil Application No. Nai. 163 of 2005. The decision concerned a reference to the full court of the decision of a single Judge of the Court. In that case the Court considered the principles which guide the court in applications of this nature. Mr. Nyachoti went through those principles in relation to this matter and did not think that the applicants had satisfied the Court on all those principles.

As stated earlier, the jurisdiction of the court is unfettered and discretionary. The applicant was aware that its struck out appeal was incompetent but took no steps for well over one year to regularize the same. The applicant was in that regard dilatory. That notwithstanding I am inclined to exercise my discretion in favour of extending time as prayed. The applicant was punished in costs when its appeal was struck out. Thereafter it came to court with this application promptly.

In the circumstances I order that time be extended for fourteen (14) days from the date hereof within which the applicant shall file and serve fresh notices appeal against the decisions of the superior court dated 22nd May 2000 and 18th, May 2001. The notices dated 29th May 2000 and 4th June 2001 for which the applicant wants time to be extended went with the struck out appeal and cannot be validated by an order made herein.

The applicant shall have 30 days thereafter to lodge and serve a record of appeal. The applicant shall pay the costs of this application.

Dated and delivered this 11th day of December 2008.

S.E.O. BOSIRE

……………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR