[2013] KECA 544 (KLR)

IN THE COURT OF APEAL

AT NYERI

(CORAM: M’INOTI, J.A. (IN CHAMBERS))

CIVIL APPLICATION NO. NAI. 97 OF 2012

BETWEEN

JOSEPH WANJOHI NJAU …………………………...…………..APPLICANT

AND

BENSON MAINA KABAU.……......……………………………RESPONDENT

(An application for extension of time to file and serve a notice of appeal and record of appeal from the judgment and decree of the High Court of Kenya at Embu (Muchelule J.) dated 19th October, 2011

in

H.C.C.A. No 11 of 2010)

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

RULING

Before me is a Motion on Notice dated and filed in court on 22nd March, 2012 for extension of time to file a notice of appeal and a memorandum of appeal. The application is brought under Rule 4 of the Court of Appeal Rules and Sections 3A and 3B, presumably of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya. The application is supported by affidavits sworn by two advocates of the High Court of Kenya, Mr. Joshua Magee wa Magee Maina and Ms Claire Nyaguthii Muriithi, explaining and taking responsibility for the applicant’s failure to file the notice of appeal and record of appeal within the time prescribed by the rules of this Court.

The background to the appeal, as far as I can gather from the documents annexed to the application is as follows. The applicant, claiming to be the registered proprietor of the parcel of land known as Mwerua/Kanyokora/1206 (the suit property), filed a suit against the respondent before the Senior Resident Magistrate’s Court at Baricho. He prayed for among others, a declaration that the respondent was in unlawful occupation of the suit property, eviction of the respondent therefrom, a permanent injunction and mesne profits. In his defence and counterclaim, the respondent pleaded that he had purchased and was in occupation of the suit property and prayed for a declaration that the applicant’s registration as proprietor of the suit property was fraudulent, an order for cancellation of the registration and registration of the suit property in his name.

The subordinate court found in favour of the applicant and dismissed the respondent’s counterclaim. The respondent lodge an appeal in the High Court of Kenya at Embu (Muchelule, J.) who on 19th October, 2011, allowed the appeal and set aside the judgment. He ordered the register to be rectified by canceling the name of the applicant and replacing therefor the name of the respondent. It is that judgment that the applicant is seeking extension of time to appeal against.

The explanation for the delay in filing the notice of appeal and the record of appeal as disclosed in the said affidavits of Mr. Maina and Ms Muriithi is that Ms Muriithi was deputed to take the judgment on 19th October, 2011, which she actually did. However, being an advocate of only two months standing, she forgot to record on the file the outcome of the appeal and also to communicate that outcome to Mr. Maina. It was only in mid-March, 2012, while routinely going through his files that Mr. Maina noticed that there was no progress in the file. Upon inquiring from Ms Muriithi what had transpired on judgment day, she could not even recall. So he sent his clerk to court who obtained a copy of the judgment on 13th March, 2012. Thereafter he conferred with the applicant for instructions, culminating in the filling of this application on 22nd March, 2012, some 9 days after learning about and obtaining the judgment.

Mr. John Ndana, learned counsel for the respondent was less than impressed by the application and the reasons in support. In his view, the delay of five months from the date of delivery of the judgment to the date of filing this application was inexcusable; there was glaring lack of diligence on the applicant’s part; the application was an afterthought; the applicant was spurred into action only after service of the respondent’s bill of costs; the appeal was not arguable and that the judgment of the High Court had been implemented and the suit premises had been registered in the name of the respondent. Mr. Ndana did not disclose when he had served the bill of costs and when execution of the judgment had taken place. No evidence was proffered on either issue. Mr. Maina, though not able to confirm execution of the judgment, did not see it as a hindrance to the applicant’s intended appeal because if successful, the register can still be rectified once more.

The grounds upon which this Court exercises its discretion in an application for extension of time were succinctly set out in Leo Sila Mutiso vs. Rose, Civil Application No. Nai. 255 of 1997 (unreported) as follows:

“It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are, first, the length of delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted and fourthly; the degree of prejudice to the respondent if the application is granted”.

The first issue is the length of delay. The respondent sees the delay as approximately five months, from the date of judgment to the date of filing this application. That is one way of looking at it, if the explanation for the delay is not taken into account. If it is, the delay may be as short as 9 days, from the date of obtaining a copy of the judgment, to the date of filling the application. In my view, in this case the length of delay must be considered in light of the explanation that has been advanced.

I take it that the reason for the delay has been candidly explained. The deposition that the junior counsel who took the judgment was only two months into practice and made the blunder that prevented the filling of the notice of appeal within the prescribed 14 days from the date of the judgment is not challenged. I would, in the particular circumstances of this case be willing to excuse the mistake of a newly admitted advocate, though much more must be expected from Mr. Maina, her employer. Having said that, it is important to also bear in mind Lord Griffith’s words in Ketterman vs Hansel Properties [1988] 1 All ER 38:

“Legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of lawyers to fall on their own heads rather than allowing an amendment at a very late stage in the proceedings.”

On the chances of the appeal succeeding, the applicant has annexed draft grounds of appeal where he contends, among other things, that the respondent’s counterclaim which was allowed was barred by the Limitation of Actions Act, Cap 22 Laws of Kenya and that his rights under sections 27 and 28 of the Registered Land Act, Cap 300 (now repealed) were not considered. The Court of Appeal has observed that an arguable appeal is not one that must necessarily succeed, but is one which ought to be argued fully before the court. For the foreseeable future the Court of Appeal will still remain the court of last resort for the majority of Kenyans, and it is not advisable in my opinion, unless for compelling reasons, to shut out parties from ventilating their grievances in this Court. This dispute revolves around land and I think it would be prudent to have it determined on merit on appeal.

The respondent, in a bid to show the prejudice that he would suffer if this application is granted dubbed the application as stratagem to delay him from enjoying the judgment in his favour. The respondent has been in occupation of the suit property, at least that is the reason why the suit in the subordinate court sought his eviction. He now states that the judgment of the High Court has been executed and the suit property is registered in his name. In the circumstances I do not think allowing this application will visit upon the respondent any greater hardship or prejudice.

Taking into account all the foregoing matters and bearing in mind the overriding objective in Section 3A of the Judicature Act to facilitate the just, expeditious, proportionate and affordable resolution of the appeals as well as the duty of the Court under Section 3B of the same Act, I allow this application and extend the period for filling the notice of appeal and the record of appeal. The Notice of Appeal shall be filed and served upon the respondent within seven (7) days from today and the record of appeal shall be filed and served within fourteen (14) days from the date of service of the notice of appeal.

The respondent shall have the costs of this application.

Dated and delivered at Nyeri this 13th day of June, 2013.

K. M’INOTI

……………………………….

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR