[2022] KEHC 1953 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E468 OF 2021

KARIUKI MAINA ANTHONY......APPELLANT/APPLICANT

VERSUS

FRIDAH MUKIRI MURINGI..............................RESPONDENT

RULING

This ruling relates to the applicant’s Notice of Motion dated 3rd August, 2021 seeking the following orders;

1. Spent.

2. THAT this Honourable court be pleased to enlarge time within which to file Memorandum of Appeal.

3. THAT the Memorandum of Appeal filed here be deemed as duly filed and served within time.

4. THAT there be a stay of proceedings in Milimani CMCC No. 1371 of 2019 herein, and or any other consequential orders arising therefrom pending further orders of this Honourable Court and pending the hearing and determination of this application.

5. THAT there be a stay of proceedings in Milimani CMCC No. 1371 of 2019 herein, and or any other consequential orders arising therefrom pending further orders of this Honourable Court and pending the hearing and determination of this appeal.

6. THAT the costs of this application be in the cause.

The application is premised on the grounds on the face of the application and the supporting affidavit of JAMUEL MWAKANDANA KIWINGA, an advocate sworn on 3rd August 2021. The applicant’s case is that he wishes to appeal against the ruling of Hon. D.W.Kivuti, Principal Magistrate, delivered on 30th May, 2021 in Milimani Commercial Court Case No. 1371 of 2019. However, the time to file the appeal has lapsed hence the present application. It is averred that the delay in filing the appeal was not intentional as the ruling date was misdiarised and as a result the court delivered its ruling in the absence of counsel for the applicant. That further efforts to peruse the court file was made difficult by the downscaling of court operations as a result of the Covid 19 Pandemic. The applicant contends that his intended appeal is merited with high probability of success and is able and willing to abide by any terms as to security that this court shall order. It is further averred that while the respondent will suffer no prejudice or loss, the applicant stands to suffer irreparable loss and grave prejudice if this application is not allowed.

While reiterating the reasons for the delay in filing the appeal, it is submitted on behalf of the applicant that the mistake by the advocate should not be visited on the client. Reference was made to the case of KALEMERA VS. SALAAMA ESTATES LTD [19711 EA 284 as cited by Odunga J. inKYALO NGUNGA V KALSI TRANSPORTERS & COMMISSION AGENTS & ANOTHER [2019] eKLRand the case of MURAI VS. WAINAINA (NO. 4) [1982] KLR 38 cited in KYALO NGUNGA V KALSI TRANSPORTERS & COMMISSION AGENTS & ANOTHER [2019] eKLR where it was held;"A mistake is a mistake. It is no less a mistake because it is unfortunate slip. It is no less pardonable because it is committed by Senior Counsel. Though in the case of Junior Counsel the Court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of Justice is not closed because a mistake has been made by a lawyer of experience who ought to know better. The Court may not condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that Courts of Justice themselves make mistakes which are politely referred to us erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule.

The applicant further urges this court not to oust him from the seat of justice but rather to grant him leave to file his appeal out of time. The applicant has relied on the decision of Aburili J, in the case of TIMWOOD PRODUCTS LIMITED V KARACHIWALLA, (NAIROBI) LIMITED [2016] eKLR where the Judge held 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 pursuit of his rights and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered…”

The respondent vehemently opposed the application and filed a replying affidavit sworn on 15th October, 2021. She avers that the present application is an afterthought and procured in bad faith to deny her the fruits of her judgment. The respondent argue that the applicant has been indolent and has not demonstrated the loss he is likely to suffer should the stay of proceedings order be granted.

The respondent further submits that the affidavit of JAMUEL MWAKANDANA KIWINGAin support of the application is incurably defective and incompetent having been sworn by a stranger to the proceedings. It is the respondent’s submission that the deponent is acting under the authority and instruction of Geminia Insurance Company Limited, which is not a party to these proceeding. The respondent has cited the decisions of MUTUNGI J.inP.M.M. PRIVATE SAFARIS V KEVIN IJATIA [2006] eKLR and Mutende J. in CIVIL MISC. APPLICATION NO. 98 'B' OF 2019, PAUL NGILA AND ANOTHER VS. MUSILI MALONZA & ANOTHER SUING AS THE ADMINISTRATORS TO THE ESTATE OF THE LATE ISIKA MUSILI where the learned judge held that;

“it has not been alleged that the Insurer is acting pursuant to the doctrine of subrogation as it has not been insinuated that the insurer has alreadypaid the insured the damages and now seeks toprosecute the suit so as torecoverthe sumfrom the tortfeasor.And, since there is absolutely nothing to suggest by way or affidavitevidence theapplicants/appellantsin the matter are aggrieved, itrenders the application unmeritorious.”

The respondent further contends that filing an appeal out of time before seeking extension of time first is tantamount to moving the Court to remedy an illegality thus making the application herein irregular, incompetent and an abuse of court process.

Analysis and determination;

On the first issue, the Respondent has argued that JAMUEL MWAKANDANA KIWINGAis a stranger to the proceedings and did not have capacity to swear the affidavit as the insurance company was not a party to the primary suit. It is not disputed that the deponent had the conduct of the suit on behalf of the appellant/applicant. It is also not in dispute that Geminia Insurance company had insured the motor vehicle registration no. KBB 624H that was involved in the accident of 4th August, 2018.

Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 provides that an insurance company which has issued a motor vehicle policy against 3rd party risks is under a mandatory legal duty to satisfy any judgment entered in favour of a 3rd party against the owner of the motor vehicle in question who is its insured. Additionally, Section 10 (2) of the same Act provides that the insurer will only be liable to satisfy the judgment entered against its insured if it was notified of the proceedings in which the judgment was delivered before or within 14 days of the commencement of the proceedings.

This court is of the view that the above sections of the law bestows upon the insurer an interest in the proceedings, judgment, appeal and any other application thereof because it is required by law to satisfy the judgment obtained. Therefore, the insurance company is no stranger to the suit and the affidavit of JAMUEL MWAKANDANA KIWINGAwho had the conduct of the suit on behalf of the insured is competent and properly on record.

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. Section 79G of the Civil Procedure Act provides that:

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.

The applicant’s request to file appeal out of time may only be accepted if he satisfies the court that he had good and sufficient cause for not filing the appeal on time. The supreme court of Kenya in the case of COUNTY EXECUTIVE OF KISUMU VS COUNTY GOVERNMENT OF KISUMU & OTHERS [2017] eKLR while relying to its decision in the case of NICHOLAS KIPTOO ARAP KORIR SALAT VS IEBC & 7 OTHERS; APPLICATION NO. 16 OF 2014 [2014] eKLR reiterated the considerations to be made in such a case to be as follows:

1. Extension of time is not a right of a party. It is an equitable remedythat 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 abasis to the satisfaction of the court;

3. Whether the court should exercise the discretion to extend time, isa consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delayshould be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents ifthe extension is granted;

6. Whether the application has been brought without undue delay;

and

7. Whether in certain cases, like election petitions, public interestshould be a consideration for extending time.”

The same principles were enunciated in LEO SILA MUTISO VS. ROSE HELLEN WANGARI MWANGI, LEO SILA MUTISO VS. ROSE HELLEN WANGARI MWANGI, (Civil Application No. Nai.255 of 1997) (unreported) the Court of Appeal held that:-

“It is now well 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 the 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.”

Accordingly, for purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for extension of time to appeal under the following parameters:

i) Whether there is a good and reasonable explanation for the delay;

ii) Whether the application has been brought without undue delay;

iii) Whether the proposed appeal is arguable, and

iv) Whether any prejudice will be suffered by the Respondent.

It is not disputed that the ruling in the lower court was delivered on 30th April, 2021 and that this application was filed on 3rd August, 2021 which was way beyond the 30 days period stipulated under section 79G of the Civil Procedure Act. The reason for the delay was due to the advocate’s mistake in diarizing the ruling date, the downscaling of court operations due to the Covid 19 pandemic and the delay in issuance of certified typed proceedings, judgement and decree by the lower court. The applicant argues that he has not been indolent and has been actively following up on the case. He has supplied this court with copies of letters dated 5th June, 2021 and 30th July, 2021 to the Executive Officer seeking to ascertain the position of the case and copies of certified typed ruling and proceedings respectively. I do find that the delay in filing the appeal has been explained to the satisfaction of the court.

The matter before the trial court is yet to be heard and determined. The appellant’s application sought to review a consent on liability that had been recorded on 2nd March, 2020 and have it set aside. The appellant contend that the respondent’s suit is incurably defective. The appeal is against the ruling which dismissed the application for review. Therefore there is no need for the applicant to provide any security as a precondition to pursue the appeal.

I do appreciate the sentiments of counsel for the respondent concerning the involvement of the insurance company. There is the indication that the defendant is deceased. It would be for the best interest of the respondent to have the insurer on board. There is the issue as to who is the appellant if the defendant is deceased. That issue will be dealt with during the hearing of the appeal. The dispute involves the setting aside of a consent judgment.

In the end, I do find that the application dated 3rd August, 2021 is merited and the same is granted as prayed. The applicant to file and serve the Memorandum of Appeal within fourteen (14) days hereof.

DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF MARCH, 2022

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S. CHITEMBWE

JUDGE