[2017] KEHC 2341 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

MISC. CIVIL APPLICATION NO. 68 OF 2017

JOSEPH KARANJA CHEGE…...........................................APPLICANT

VERSUS

STANLEY MUCHIRI CHEGE……………….…..……… RESPONDENT

RULING

1. I will begin at the end: Our jurisprudence – especially in the post-2010 era – evince a clear preference that cases should, where possible, be determined on merits. To this extent, Courts agonize in their attempts to keep cases alive and away from the technical guillotine of dismissal whenever possible in cases where a party has acted less than diligently to adhere to the rules of procedure.

2. Indeed, this humanistic ethos was present in our jurisprudence even in the pre-2010 period. It is evinced by the Court of Appeal in Phillip Keipto Chemwolo & another V Augustine Kibende [1986] KLR 495where the Court stated that :

Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of having his case determined on its merits.

3. Similarly, across the border, the Ugandan Supreme Court has, in Banco Arabe Espanol V Bank of Uganda [1999] 2 EA 22, remarked, in similar vein, that:

The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuant of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered.

4. It is only for the principle stated in these cases – the principle that Courts evince a strong policy preference to determine cases on their merits whenever possible – that I have ultimately granted the Applicant in this case leave to file his appeal out of time. I am particularly moved by the fact that the underlying dispute is a succession matter and, in particular, about the emotive issue of land distribution. I am also moved by the fact that a perusal of the materials placed before the Court make it patently clear that it is the Applicant’s advocate who has repeatedly failed to act diligently to protect his interests. It is, to say the least, gnawing to the conscience that the Advocate did not as much as admit the lapses on his part.

5. Still, while I found that this case came periliously close, I ultimately concluded that it came within the outer limits of when a Court would exercise its discretion to extend time to a party to file an appeal out of time.

6. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. The section provides as follows:

Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

7. Our case law has now provided guidelines on what will be considered “good cause” for purposes of permitting a party who is aggrieved by a lower court judgment or ruling to file an appeal out of time. The most important consideration is for the Court to advert its mind to the fact that the power to grant leave extending the period of filing an appeal out of the statutory period is discretionary and must be granted on a case by case basis. While not a right, it must be exercised judiciously and only after a party seeking the exercise of the discretion places before the Court sufficient material to persuade the Court that the discretion should be exercised on its behalf and in their favour.

8. Our case law has developed a number of factors which aid our Courts in exercising the discretion whether to extend time to file and an appeal out of time. Some of these factors were suggested by the Court of Appeal in Mwangi v Kenya Airways [2003] KLR. They include the following:

a. The period of delay;

b. The reason for the delay;

c. The arguability of the appeal;

d. The degree of prejudice which could be suffered by the Respondent is the extension is granted;

e. The importance of compliance with time limits to the particular litigation or issue; and

f. The effect if any on the administration of justice or public interest if any is involved.

9. In this case, while I sympathize with the Respondent when he complains that the Applicant and his lawyer were probably less than diligent, I have concluded that the delay of eight months in the specific circumstances of this case and, especially, given the subject matter, is not inordinate. I have noted that neither the lawyer nor the Applicant was present in Court when the judgment was read. However, I have also noted, as the Respondent points out that the Applicant’s advocate has been quite parsimonious with the details: why did he not show up in Court when the judgment was delivered despite having been informed of the date? After he became aware of the judgment sometime in November, 2016, why did he not with speed to seek leave to file an appeal out of time? Why did he choose to apply for certified copies of proceedings first? Did he even get those proceedings? If so, why did he not attach them? All these to say, if it were the Applicant’s advocate’s conduct we were evaluating, the Court would not deploy its discretion in his favour.

10. As I stated, however, the fact that land is at the heart of this suit militates in favour of exercising the Court’s discretion in favour of the Applicant in extending time. In coming to this conclusion, I have looked at the grounds of appeal enumerated in the Draft Memorandum of Appeal and I am unable to say that they are hopelessly inarguable. I note that one is not required to persuade the Appellate court that the intended or filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict.

The Applicant has easily met that standard.

11. I am also of the opinion that the inconvenience suffered by the Respondent is not too substantial and the same can be cured by awarding the costs of this Application and giving strict timelines for the filing, processing, hearing and final determination of the appeal. This Court pledges to do that.

12. Consequently, in order to balance the rights of both the Applicant and the Respondent, I will condition the prayers granted here with the adherence by the Applicant of strict timelines as under:

a. The Applicant shall file and serve a Memorandum of Appeal within seven days of the date hereof.

b. The Applicant shall file the Record of Appeal within thirty days from the date hereof.

c. The Applicant shall write to the Deputy Registrar requesting him to place the Appeal before the Judge for directions within fourteen days of the filing of the Record of Appeal.

d. The Applicant shall pay the costs of this Application. The same shall be paid before the Appeal is set down for directions.

13. The failure by the Applicant to abide by any of the conditions above will immediately render the appeal automatically dismissed unless the Court orders otherwise.

14. Orders accordingly.

Dated and delivered at Kiambu this 2ndDay of November, 2017.

……………………………………

JOEL NGUGI

JUDGE