[2004] KECA 100 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NYERI

(CORAM: ONYANGO OTIENO, AG. J.A (IN CHAMBERS)

CIVIL APPLICATION NO. NAI. 83 OF 2004 (NYR 5/2004)

BETWEEN

JOSEPH NJAGI NTHIGA MUKABI …………………….………… APPLICANT

AND

JOSPHAT NTHIGA MUKABI ………………………………….. RESPONDENT

(Application for extension of time to serve notice of appeal and file record of appeal out of time in an intended appeal from the judgment and decree of the High Court of Kenya heard at Embu and delivered at Meru (Tuiyot, J) dated 11th October, 2001 in H.C.C. Appeal No. 29 of 2000) **********************

R U L I N G

On 11th October, 2001, the superior court at Meru (Tuiyot, J.) delivered a judgment in which he dismissed the applicant’s appeal from the decision of the Resident Magistrate at Siakago in Civil Case No. 3 of 1998. The applicant felt aggrieved and filed a Notice of Appeal on 23rd October, 2001. Before that, he applied to the Deputy Registrar at Embu for certified copies of proceedings and judgment. That was on 22nd October, 2003. It does not appear to me that that letter was copied and sent to the respondent as is required by rule 81(2) of the Court of Appeal Rules. However, this is not mine to go into at this juncture. Suffice it that after that letter seeking proceedings was forwarded to the court, the court file went missing and there are correspondences between the applicant in person, and the then Chief Justice and the Registrar of the High Court on the same which would prove to my satisfaction that the file went missing and the same copies of the proceedings and judgment were availed to the applicant’s advocate on 29th October, 2003 when the file was traced. The applicant’s counsel thereafter obtained a certificate of delay on 29th January, 2004. Thereafter, the advocate for the applicant says from the bar that his wife fell sick and he lost her. That explains the further delay in filing the record of appeal.

As a result of all the above, he has now brought this application under rule 4 of the Court of Appeal Rules and is seeking the following two orders namely:- “

1. That the Honourable Court do grant leave to the applicant to serve the notice of appeal out of time and to file and serve the record of appeal out of time.

2. That costs of this application do abide in the intended appeal.”

The respondent, though served through his former advocate, appeared in person stating that he was no longer represented by a counsel. He did not object to the application but submitted that as the applicant had an advocate, the advocate should have employed his professional know-how to take appropriate action even when the file got lost.

The Court has unfettered discretion in an application such as the one before me, it having been brought under rule 4of the Court of Appeal Rules. It is now settled law, however, that such discretion must be exercised judiciously upon reason. In this application, the main explanation given for the delay is that the file got lost immediately after the applicant had applied for copies of proceedings and judgment. That explanation has not been challenged and there is no replying affidavit filed by the respondent. There are exhibits namely correspondences between the applicant, his counsel and the then Chief Justice and the Registrar on the matter, as I have already stated hereinabove. I am satisfied that that explanation is genuine. The other explanation for the delay between 29th January, 2004 when the certificate of delay was issued and 29th March, 2004 when this application was filed is that the applicant’s counsel lost his wife and attributes the delay to his problems occasioned by the same. While this was revealed from the bar and was not in the supporting affidavit, I am, on my side, prepared to accept it as a genuine reason. Thus, there are, in my view, good reasons for the delay to file the record of appeal. As to the delay to serve the Notice of Appeal, nothing is stated in the supporting affidavit, but, I note from the record and I was told that the Notice of Appeal was filed by the former advocate for the applicant who ceased to act for the applicant thereafter and that mistake of delay in serving the Notice of Appeal within the time required by law was attributed to that former advocate. I am not prepared to visit that omission upon the applicant, as he may not have been aware that his former advocate did not comply with the Rules of the Court. This is a land dispute between two brothers. There is need to give both sides an opportunity to be fully heard on the matter up to the highest Court in the land. I am satisfied that the applicant deserves my discretionary powers and I will grant it. The application is allowed.

The applicant has seven (7)days from the date hereof to serve the Notice of Appeal. The applicant also has Thirty (30) days from the date hereof to file and serve the record of appeal. As a result of the circumstances of this application, I will make no order as to costs.

Dated and delivered at Nyeri this 3rd day of November, 2004.

J.W. ONYANGO OTIENO

AG. JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR