[2023] KEHC 26432 (KLR)

Jepco Limited v Mungai & another (Miscellaneous Civil Application E042 of 2023) [2023] KEHC 26432 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26432 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application E042 of 2023

JRA Wananda, J

December 8, 2023

Between

Jepco Limited

Appellant

and

Samwel Ndungu Mungai

1st Respondent

Babato Travellers

2nd Respondent

Ruling

1. The Application before this Court is the Notice of Motion dated 27/02/2023 and filed on 8/03/2023 through Messrs ABK Advocates LLP. It seeks the following orders:i.…………… [Spent]ii.That this Honourable Court be pleased to enlarge time within which the Appellant/Applicant was required to file a Memorandum of Appeal to the High Court against the Judgment at the Small Claims Court in Eldoret delivered by the Honourable T.W. Mbugua Adjudicator on the 28th of October 2022. iii.That the Memorandum of Appeal dated 25th January 2023 be deemed as properly filed.iv.That the Appeal be certified ready for hearing and directions be given as to the manner of hearing and disposal of the same.v.That the costs of this Application be provided for.

2. The Application is expressed to be brought under Order 50 rule 5 and order 51 rule 1 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act and “other enabling provisions of the law”. The grounds of the Application are as set out on the face thereof and it is supported by the Affidavit sworn by one Maureen Nderengwa.

3. In the Affidavit, the deponent describes herself as the Applicant’s director and deponed that Judgment was entered on 28/10/2022 in the Small Claims Court at Eldoret, that there has been delay in obtaining copies of the Judgment and proceedings hence occasioning delay in obtaining advice on whether there are sufficient grounds for appeal, the Application has been brought without undue delay upon Counsel realizing that the right to Appeal is not automatic, and that the Respondents stand to suffer no prejudice if the Application is allowed.

Response 4. The Respondent opposed the Application vide the Replying Affidavit filed on 22/05/2023 through Messrs J. M. Kimani & Co. Advocates and sworn by the 1st Respondent, Samuel Ndungu Mungai who also described himself as the Director of the 2nd Respondent. He deponed that the Application has been brought after an inordinate delay without sufficient cause, the disposition of the Judgment was read out in Court and parties were to obtain a copy thereof from the Registry, there was no doubt from the disposition that the Applicant’s claim had been dismissed, he is advised by the Respondent’s Advocates that on the same day the Adjudicator rendered herself, the Respondent’s Advocates secured a copy of the typed and signed Judgment, the same was therefore ready, equity aids the vigilant and not the indolent, the Applicant’s failure to secure a copy of the Judgment that was readily available on 28/10/2022 is not a ground for invoking inherent powers of this Court, it is also curious that the Applicant’s letter requesting for a copy of the Judgment is dated 10/11/2022 and was received in Court on 16/11/2022, surprisingly it is not copied to the Respondents’ Advocates, in any event, the Applicant has not exhibited a copy of the Judgment and proceedings, and that the Applicant filed a similar Application dated 25/01/2023 to wit Eldoret HCCA No. E019 of 2023 which was withdrawn.

Hearing of the Application 5. The Application was canvassed by way of written submissions. Pursuant to directions given, the Applicant filed his Submissions on 6/07/2023 while the Respondent filed on 3/07/2023.

Applicant’s Submissions 6. Counsel for the Applicant submitted that his firm requested for copies of the Judgment and proceedings to enable them advise the Applicant on whether an appeal would be an option, the Advocates immediately filed a Memorandum of Appeal dated 29/01/2023 upon receiving a copy of the Judgment on 24/01/2023 and also filed the instant Application a second time after the first Application was withdrawn as it was filed as a Civil Appeal instead of a Miscellaneous Application, under Section 79G of the Civil Procedure Act, an appeal may be admitted out of time if the Applicant satisfies the Court that he had good and sufficient cause for not filing the Appeal in time. He cited the case of Charles N. Njagi v ASL Credit Limited [2022] eKLR and submitted that the Memorandum of Appeal dated 25/01/2023 was filed in Court on 8/02/2023.

7. On the factors that aid the Court in exercising its discretion to extend time to appeal, Counsel cited the cases of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR and Edith Gichugu Koine v Stephen Njagi Thothi [2014] eKLR. He submitted that the time for filing the Appeal lapsed on 28/11/2022, that the Advocates had already requested for copies of the Judgment on 10/11/2022 and that the Court Registry delayed in supplying the same. He also cited the case of County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR and added that the Respondents will not suffer prejudice if the Application is allowed.

Respondent’s Submissions 8. Counsel for the Respondent submitted that the Application is made after inordinate delay and offends Section 38 of the Small Claims Court Act. He also cited Section 79G of the Civil Procedure Act. For the guiding principles in an application for enlargement/extension of time to appeal, he cited the case of Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR.

9. Counsel then submitted that the Judgment sought to be appealed against was delivered on 28/10/2022 while the present Application was filed on 8/03/2023, more than 4 months later, Section 34 of the Small Claims Court Act No. 2 of 2016 envisages expeditious disposal of matters and in any case not later than 60 days, in view of the foregoing, time is of essence and one would expect the Applicant to have moved with speed to lodge the Memorandum of Appeal since the Judgment was delivered in the presence of its Advocates. He cited the case of Lucy Ann Wangumi Njagi v Francis Miano [2019] eKLR and added that the Applicant’s reason for delay is not plausible, if the sole reason for delay was lack of the Judgment and proceedings, then one would wonder why the same has not been exhibited, the Judgment were read in the presence of the Advocates and a typed copy was ready on the same day, the letter requesting for the Judgment was not copied to the Respondents’ Advocates who could have supplied a copy on the same day, and that the Advocates’ inaction or indolence is not a ground for enlargement of time. He also cited the case of Rajesh Rughani v Fifty Investment Ltd & Another eKLR.

10. Counsel further contended that the Appeal does not stand a chance of succeeding because the Memorandum of Appeal alleged to be exhibited and dated 25/01/2023 does not bear such date, the same is dated 27/02/2023, the Applicant challenges the Judgment basically on factual grounds contrary to Section 38(1) of the Small Claims Act which only envisages appeals on matters of law, in the Judgment, it is stated that the Applicant did not plead subrogation” and as such its evidence was not in tandem with its pleadings, the Court should not entertain an appeal on elementary issue of drafting of pleadings for academic purposes, and that the shortfall cannot be cured by entertaining a cosmetic appeal that is dead on arrival, it is akin to flogging a dead horse.

11. It was Counsel’s further submission that as regards prejudice, the Respondents want closure, it is against public policy to keep a matter pending indefinitely, not to mention the inconvenience, in a bid to waste time, the Applicant filed a similar Application and then withdrew it on 14/02/2023 only to file the present one on 8/03/2023, almost a month later, from the Applicant’s conduct, it does not deserve any consideration from this Court. He cited the case of Wachiuri Wahome v Festus Gatheru Wahome & Others [2016] eKLR.

Analysis and Determination 12. Upon carefully considering the record including the Affidavits, Submissions and authorities presented, it is evident that the issue that arises for determination is “whether the Applicant should be granted leave to Appeal out of time”.

13. Regarding extension of time, the Supreme Court, in the case of Civil Application No. 3 of 2016 - County Executive of Kisumu –vs- County Government of Kisumu & 7 Others, held as follows: -“(23)It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court. Further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The court delineated the following as: -“the underlying principles that a court should consider in exercise of such discretion:1)Extension of time is not a right of a 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 on 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.

14. I appreciate that in holding as it did, the Court was dealing with Rules 32 and 53 of the Supreme Court Rules. I however trust that the holding nevertheless lays down the general principles to be applied in Applications for extension of time no matter the statutory basis.

15. I also cite the Court of Appeal decision in the case of Edith Gichugu Koine v Stephen Njagi Thoithi[2014] eKLR where, although Odek JJA was dealing with an Application brought under the Court of Appeal Rules on extension of time to Appeal, the guidelines he gave are very much applicable herein. He stated as follows:“8. ……. There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many 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 if the application is granted, and whether the matter raises issues of public importance, amongst others – See Fakir Mohamed V Joseph Mugambi & 2 Others, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.”

16. The curious matter I notice in the present Application is that it does anywhere, not even in the prayers, mention the Small Claims Court suit number against whose decision it seeks enlargement of time to appeal. The only description stated is simply that it is a Judgment of the Small Claims Court without giving the particulars thereof. The Certificate of Urgency and the Supporting Affidavit, too, do not mention the suit. The only way for one to identify what suit is being referred is by referring to the exhibits attached thereto, namely, the copy of the Memorandum of Appeal and the letter requesting for the Judgment and proceedings. Although it may be argued that this is an insignificant omission because both parties are no doubt aware of the subject suit, I still find this to be a major defect. This is because, assuming the Application is allowed as prayed, the Applicant will then need to extract the Court Order. Ordinarily, a Court order or decree will take the form of the prayers as drawn since ordinarily, the Court will only grant that which is sought. Assuming that this is what will happen, how then will the extracted order assist the Applicant when, in consonance with the prayers as drawn, it will not mention the lower Court suit to be appealed against?

17. Coming back to the merits of the Application, it is clear that the sole ground for the present Application is that upon delivery of the Judgment on 28/10/2022, the Applicant’s Advocates could not obtain the typed proceedings and Judgment within the 30 days allowed for filing an Appeal. It is not in dispute that, unlike in the Court of Appeal, a copy of the Judgment and proceedings of the lower Court are not prerequisites to be included and/or filed with the Memorandum of Appeal. The Memorandum of Appeal is the only item required by the High Court to register an Appeal. The Judgment and proceedings will only become necessary at the time of compiling and filing of the Record of Appeal. The failure to obtain a copy of the Judgment and proceedings could not therefore have been a reason for failing to file the Appeal in time. However, as aforesaid, the ground cited by the Applicant is that its Advocates needed to peruse the Judgment before advising whether or not there were grounds for appeal. But is this a convincing ground?

18. In answering the above question, I note that the Judgment is a brief one and comprises of only 5 pages. It is admitted that the Judgment was delivered in the presence of the Applicant’s Counsel. The Applicant’s suit that was dismissed by the Small Claims Court was a simple ordinary traffic or road accident, the nature commonly referred to as “running down” cases. Such suits, in most cases, entail the usual routine issues for determination and do not ordinarily raise serious or complicated matters of law. Generally therefore, upon delivery of a Judgment in such a case, it should not generally require an Advocate to withhold the drafting of a Memorandum of Appeal until and unless he has sight of the proceedings and Judgment. A diligent Advocate, particularly, where as in this case, he was present in Court when the Judgment was read out, would easily conjure an appropriate Memorandum of Appeal even without having read the full Judgment. I therefore do not readily “buy” the Applicant’s argument that its Advocates needed to first peruse the same

19. In this instant matter, the accident was a collision between two vehicles and all that the Court needed to determine, and which is what it did, was whether as alleged by the Applicant, it is the Respondents’ motor vehicle that was at fault. In its Judgment, and as its ground for dismissing the suit, the Court simply stated that this allegation was not proved. Why would an Advocate in such a clear scenario, and who was even present when the Judgment was read out, allege inability to draft such a simple and straight-forward Memorandum of Appeal until and unless he has sight of the 5-page Judgment? The fact that the Court is said to have only read out the disposition part of the Judgment does not change the situation. Faced with such a situation, I would expect a diligent Advocate to even consider filing a “holding” Memorandum of Appeal even if only to beat the 30 days deadline, then upon receiving the Judgment, amend the same, if necessary. This is because no leave is required to make such an amendment before the High Court gives directions on the hearing of an Appeal. This is clear from Order 42 Rule 3 of the Civil Procedure Rules which provides as follows:1The appellant may amend his memorandum of appeal without leave at any time before the court gives directions under rule 13.

2After the time limited by subrule (1) the court may, on application, permit the appellant to amend his memorandum of appeal.

20. Regarding the delay itself, according to the Applicant, after the Judgment was delivered on 28/10/2022, its Advocates delivered a letter to the Court requesting for copies of the proceedings and Judgment. Although the letter is dated 10/11/2022, I note that the Court stamp thereon indicates that it was received by the Court on 16/11/2022. It is not lost on me that 16/11/2022 was almost 3 weeks after delivery of the Judgment on 28/10/2022. Since no evidence has been demonstrated to show what efforts, if any, were made by the Applicant’s Advocates to obtain the Judgment prior to the letter being delivered, I find that this 3-week delay has not been explained.

21. In any event, the Respondents have deponed on oath that on their part, they obtained a typed copy of the Judgment on 28/10/2022, the same day that the Judgment was delivered. According to the Respondents therefore, this is sufficient proof that the Judgment was at all material times available for the parties to collect. This statement was not denied or controverted by the Applicant. If therefore the Respondents were able to obtain the copy, how come the Applicant could not do so as well?

22. Further, I also observe that the Respondents have exhibited a copy of an earlier similar word by word Application filed by the same Applicant as herein in Eldoret High Court Civil Appeal No. E019 of 2023 but which Application was subsequently withdrawn. This fact has been admitted in the Applicant’s Submissions. However, the Applicant never disclosed this material fact to the Court. Had it not been for the Respondents’ disclosure, the Court would never have known about it. Applicants need no reminder that it is important that all facts material to a matter before a Court of law, whether they strengthen or weaken their case, should never be withheld from the Court. Parties must always be candid. Failure to disclose material facts leaves the Court with no option but to make an adverse inference against such Applicant. Since the reason for this non-disclosure has not been explained, I find the same to have been done in bad faith and deliberately meant to conceal or suppress material facts.

23. I also observe that the Respondents have stated that the said earlier Application was withdrawn by the Applicant on 13/02/2023. This fact has also not been controverted or denied by the Applicant. That being so, I observe further that upon the withdrawal, it was not until 8/03/2023, almost 1 month later, that the present Applicant was filed. Again, there is no explanation whatsoever for this delay.

24. The other costly omission or deficiency that the Applicant is guilty of is the failure to disclose to the Court the date or time when it eventually received the Judgment and proceedings. Once more, in the absence of such disclosure, the Court is left with no material to interrogate whether or not the delay is excusable.

25. It is also important to always recall that appeals from the Small Claims Court are restricted to only issues of law. This is pursuant to Section 38(1) thereof which provides as doth:“A person aggrieved by the decision or an order Appeals. of the Court may appeal against that decision or order to the High Court on matters of law.

26. It is therefore incumbent upon any intended Appellant to the High Court against a decision of the Small Claims Court to carefully draw his Memorandum of Appeal in a manner that clearly brings out the exact point of law sought to be appealed against. There should be no ambiguity. I have perused the Memorandum of Appeal exhibited and note that the grounds listed therein are couched in very general terms with no specificity or precision. In the circumstances, this Court is left in the unenviable position where it is not able to assess or weigh the chances of success of the intended Appeal or determine whether the matters intended to be appealed against raise substantial points of law or matters of public importance which ought to be revisited by an appellate Court for finality.

27. Enlargement of time is a matter of exercise of discretion and which discretion, needless to state, is required to be exercised judiciously. With the said shortfall apparent in the Memorandum of Appeal, this Court has no material before it to enable it determine whether or not it should exercise its discretion. Since the burden of proof is on the Applicant, it is the Applicant that must suffer the consequences of the omission.

28. Before I pen off, I also note that, in his Submissions, the Applicant’s Counsel states that the Applicant filed the Memorandum of Appeal dated 25/01/2023 in Court on 8/02/2023. I have failed to understand this Submission since the Memorandum exhibited is dated 27/02/2023 and bears the Court stamp of 8/03/2023, the same date as the present Application, which is therefore the date of its filing.

29. The Applicant also does not seem sure whether its present Application is filed under an already filed Appeal which it thus seeks to be ratified or admitted by the Court subsequently or whether it is a Miscellaneous Application seeking enlargement prior to filing the Appeal. This is because the Application is itself titled “Miscellaneous Civil Appeal”, a description that is not only alien, but also incomprehensible.

30. Applying the principles set out in the various authorities cited, to the facts of this case, I find that, apart from the apparent deficiencies in its pleadings, the Applicant has also failed to tender sufficient explanation as to why there was delay in filing the Appeal within time.

31. The Small Claims Court was basically enacted to simplify access to justice by enhancing the ease of doing business, reducing backlog of cases and facilitating quick resolution of disputes through simple, affordable and expeditious litigation procedures and timelines. I therefore agree with the Respondent’s Counsel that to elongate litigation emanating from the Small Claims Court by entertaining the unexplained delays committed by the Applicant and its Advocates flies in the face of the objectives of the Small Claims Court Act, No. 2 of 2016.

Final Orders 32. The upshot of my findings above is that the Application for enlargement of time fails. Consequently, the Notice of Motion dated 27/02/2023 is hereby dismissed with costs.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF DECEMBER 2023…………………WANANDA J.R. ANUROJUDGE