[2018] KEHC 5950 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. APPLICATION NO. 183 OF 2017

JONATHAN KARISA...........................................PROPOSED APPELLANT

VERSUS

KENYA POWER & LIGHTING CO. LTD...........................RESPONDENT

R U L I N G

1. There is before court for determination the application by Notice of Motion dated 27/6/2017 which seeks orders that:-

i) THAT this application be certified as urgent and service herein be dispensed with in the first instance.

ii) THAT the proposed Appellant be granted leave to Appeal out of time against the whole judgment of the Hon. L.T. Lewa Senior Resident Magistrate, delivered on 16th December, 2016 at Mombasa.

iii) THAT the Memorandum of Appeal annexed hereto be deemed as duly filed and served.

iv) THAT the costs of this application be provided for.

2. The decision sought to be appealed against is disclosed to have been made on the 16/12/2016. That Judgment is exhibited in the Application and marked JK 2. By it, the trial court found that the plaintiff’s suit, (now applicant), could not be sustained and dismissed it with costs.

3. Having been given on the 16/12/2016 as aforesaid the Applicant did not move the court till the 27/7/2018, some 7 months later. The explanation given for failure to file the Appeal in time is that the Applicant was not aware that the judgment had been delivered and that he desires to appeal and holds the opinion that the proposed appeal has good grounds (arguable).

4. The application was supported by the Applicant’s affidavit which Largely asserted that he only learnt of the judgment recently (no specific date given) when he got the file at the Registry. The applicant exhibited correspondence by both counsel to show that the advocates were inquiring from the court the date the judgment would be delivered well after it had been so delivered. According to the respondent, the judgment was due for delivery on the 11/11/2016 but was never delivered on the date scheduled.

5. The Respondent opposed the Application by the Grounds of opposition dated 14/9/2017 essentially contending that the applicant was guilty of laches, that the Applicant had not offered security as to costs and that the grounds disclosed to premise the Application showed that it lacked merits.

6. On 20/9/2017, the court directed parties to file submissions and attend court to highlight same. However, by the time the matter came up for such highlighting, only the Applicant had filed submissions while the Respondent had not. Due to lack of time the parties asked the court to look at the material filed and to make a determination without having to take oral submissions by the counsel.

Analysis and determination

7. It is now trite that where the law sets timelines for a litigant to take steps and such timelines lapse without such steps being taken, the party in default in seeking extension of time leaves the matter at the discretion of the court aimed at achieving wider interests of justice and largely the parties relies heavily on indulgence by the court. Request to get time extended is never a right to be given as of course. This was succinctly laid by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others [2014] eKLR, when it quote with approval a comparative decision in UNITED ARAB EMIRATES VS ABDELGHAFAR 7 OTHERA 1995 IRLR 243

“The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result, he should act promptly. The grounds for extending his time are not as strong as where has not yet had a trial. The interest of the parties and the public in certainty and finality of legal proceedings make the court stricter about time limits on appeals. An extension may be refused, even though the default in observing time limit has not cause prejudice to the party successful in the original proceedings…

…In those circumstances, it is incumbent upon the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default”.

8. I would summarize the excerpt to say that in an application to extend time, court’s discretion is invoked to call in the courts sense of justice and fairness. As in all discretions a basis has to be laid to the satisfaction of the court. To the court the basis should be found on the reason for failure to act in time and the nature of the litigation sought to be pursued in the intended appeal.

9. Now in this matter, what is not contested in that both counsel sought to know, well after the judgment had been delivered, when it would be delivered. That gives me the impression that the judgment which the Applicant says was due for delivery on 11/11/2017, was delivered on 16/12/2017 without notice and participation by the parties. If that be true then the dictates upon the court imposed by the provisions of Order 21 Rule 1 were never adhered to or observed.

Order 21 Rule 1 provides:-

“In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates.

Provided that where judgment is not given within sixty days the judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment”.

10. Having found, going by the inquiry of both counsel on the date for Delivery of the judgment, that the subject judgment was delivered in the absence of the parties and without notice, I now do find that the judgment sought to be appealed against was delivered contrary to the law under Order 21 Rule 1. To this court the need for notice of a date for delivery of judgment is an integral part of the right to access to justice so that a party who feels aggrieved by a decision exercises its right to appeal within the time stipulated by statute.

11. The timelines set by the rules and the Act are not just pious Aspirations, rather, they are the very cogs by which the justice system operates. The Supreme Court in Nicholas Salat (supra) had this to say of the rules.

“I am not persuaded that article 159 of the constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all scenario in the administration of justice.

This court, indeed all courts, must never provide succor and to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination, fair, just certain and even-handed. Court cannot aid in the bending or circumventing of rules…..”

12. With guidance from that apex court, I am satisfied that the failure by the applicant to make his choices and exercise his undoubted right of appeal was occasioned by failure to be given notice by court on the date of delivery of Judgment.

13. To decline extension of time sought here would be to further and an undeserved blessing of the denial by the trial court a scenario that can only be seen to entertain and encourage failure by a court to comply with the law as enacted by the legislature. That would not only be unjust, unfair but also disproportionate and uneven-handed if not illegal all together.

14. For that reason alone, I am inclined to exercise by discretion in favour of the Applicant and do extend time within which to file the appeal. I extend time by a period of 21 days from the date hereof.

15. I have also looked at the judgment sought to be challenge and hold the view that the intended appeal is not spurious because upon dismissing the suit, the trial court did not meet its obligation to assess damages.

16. I order and direct that the costs of this application shall abide the outcome of the intended appeal.

Dated and delivered at Mombasa this 25thday of May 2018.

P.J.O. OTIENO

JUDGE