[2014] KECA 212 (KLR)

IN THE COURT OF APPEAL

AT NAKURU

(CORAM: NAMBUYE ,JA (IN CHAMBERS)

CIVIL APPLICATION NO. NAI 283 OF 2013

BETWEEN

KENYA BREWERIES LIMITED…………………..…….............APPLICANT

AND

LAWRENCE NDUTU & 6000 OTHERS…….……………..RESPONDENTS

(Application for extension of time to file and serve a Notice of Appeal and Memorandum of Appeal in an appeal against the Ruling of the High Court of Kenya at Nairobi (Ang’awa, J.) Dated 16th December, 2011

in

H.C.C.C. No. 279 of 2003)

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RULING OF NAMBUYE-JA

Before me is an application by way of a notice of motion dated the 16th day of October, 2013, premised on Rules 4,41,42 and 75(2) of this Courts Rules, lodged in this Courts’ Registry on the 18th day of October, 2013, Seeking an order that the time for filing and service of a Notice of Appeal and Record of appeal against the Ruling and order of the Superior Court made on 16th December, 2011 by the Honourable Lady Justice Mary Ang’awa in High Court civil case No. 279 of 2003 be extended for such period as this Honourable Court may deem fit and that costs to and incidental to the application be costs in the appeal.

The application is based on the grounds in the body of the application as well as the content of a supporting affidavit of Phyllis Kamau of 16th October, 2013. In a summary, the applicant contents that there is in place Nairobi High Court HCCC No. 279 of 2003; an order was made in this file by Ang’awa J on the 16th day of December, 2011 permitting the representation of the respondents in a representative suit by more than one advocate; the firm of O.P. Ngoge & Co. Advocates was aggrieved by the said orders of Ang’awa, J and filed a notice of Appeal intending to appeal against that decision; a notice of change of advocate for some of the plaintiffs was filed by the firm of Namada & Co. Advocateswho immediately upon placing themselves on the record moved the court to have the notice of appeal struck out. The applicants herein allege they will suffer prejudice if that notice of appeal is struck out as this Court will not be in a position to determine the issues as to whether this Court has Jurisdiction to permit multiple representation of parties in the same representative suit, a situation likely to cause great injustice to the applicants, if allowed to prevail. This is also likely to cause confusion as the civil Procedure Rules do not provide for such a mode of representation.

The application is opposed by a replying affidavit of Michael Kimonyi deposed on the second day of December, 2013 and lodged in this Courts’ Registry on the 2nd December, 2013. In summary, the first respondent contends that the orders sought to be appealed against were made on the 16th day of December, 2011; the applicant has all along been aware of these orders; they never raised any objection to those orders at the earliest opportunity, neither did they express any wish to appeal against those orders; the application is therefore an afterthought; the continued delay in the disposal of the main suit at the High Court favours the applicant as the number of plaintiffs in the High Court case is falling due to deaths or voluntarily opting out of the proceedings on account of outright desperation. The respondent further argues that during the arguments on multiple representation, the applicant herein never opposed the coming onto the record of the firm of Harrison Kinyanjui & Co. Advocates for some of the respondents, taking the position that, the respondents had a right to appoint advocates of their choice and left the decision to the learned Judges discretion. Further that, when an application for stay of the High Court proceedings was argued in this Court, based on the notice of appeal filed by the firm of Ngoge & Co. Advocates, the applicant herein filed an affidavit in opposition to the request for stay urging the Court to acknowledge the parties right to instruct an advocate of their choice. To the respondent, it is now surprising that the applicant intents to appeal against a decision of the High Court which they have essentially supported all along. Also order 8 of the Civil Procedure Rules does not bar multiple representation of parties in the same litigation.

On the date fixed for the hearing and disposal of the application P.M. Gachuhi for the applicant and Namada for some of the respondents were in attendance. Harrison Kinyanjui & Co. Advocates served with the hearing notice on the 22nd May, 2014 at 12. 00 noon and the firm of Ngoge & Co. Advocates served on the 23rd day of May, 2014 at 1. 00pm were absent. The Court being satisfied that they had due notice of the hearing date and since no explanation for non attendance had been given, allowed learned counsel Mr. P.M. Gachuhi and Namada J.S.to proceed.

In his oral submission to Court Mr. P.M. Gachuhi reiterated the content of the grounds in the body of the application and the supporting affidavit then added that there has been no delay in the presentation of their application under review as it was presented immediately the respondents signified their intention to withdraw the notice of appeal against the order of Ang’awa, J of 16th December, 2011 and that the applicant is genuinely aggrieved as it needs to know who to respond to considering that the filing of the plaint and discovery were done by only one counsel then appearing for all the respondents; that there are fundamental issues to be raised on appeal by the applicant if granted extention of time to do so; that the intended appeal will crystallize the position in law on the issue of multiple representation in a representative suit, considering that the Civil Procedures Rules are silent on this issue.

In response, Mr. Namada reiterated the content of the replying affidavit set out above urging me to dismiss the application for the reason that, the applicant has failed to satisfy the prerequisites for the granting of such a relief as they have failed to explain why they did not promptly file a notice of appeal against the ruling of Ang’awa, J; their conduct demonstrates clearly that they were not aggrieved by the orders of Ang’awa, J of 16th December, 201 borne out by their opposition to the application to stay the ruling of Ang’awa, J a foresaid.

Mr. Namada went on to argue that, no explanation has been given as to why the applicant has suddenly become aggrieved three years later; there are no serious issues for interrogation on appeal; the issue of which lawyer is representing which plaintiffs can be cured by asking each participating lawyer to file a notice indicating which of the plaintiff is being represented by them.

In response, Mr. Gachuhi added that since they had filed a notice of address under rule 80 of this Court’s rules where there was already a notice of appeal on the record, there was no justification for them to replicate either the notice of appeal or the appellate process by lodging a separate appeal; reiterates the issue of representation in a representative suit is a fundamental one and needs to be interrogated on appeal considering that this Court has already differently ruled that the issue of multiple representations in a representative suit was arguable.

On case law, the applicant relied on the ruling in Lawrence Ndutu & 6,000 others versus Kenya Breweries Limited and John Harrison Kinyanjui Harrison Kinyanjui & Co. Advocates. Civil Application Nai 151 of 2013 (UR31/2013) for the proposition (i) that this Courts Jurisdiction to grant rule 5(2) (b) orders is anchored on the notice of appeal; (ii) that once the notice of appeal is withdrawn or struck out the order of stay of proceedings granted in pursuant thereto automatically lapses and such an order cannot be varied to apply to other contingencies. The decision in Lawrence Ndutu & 6000 others versus Kenya Breweries Limited & John Harrison Kinyanjui t/a John Harrison Kinyanjui advocates CAPP. Nai 291of 2011 (UR 192/2011 for the proposition: That every person has an inherent right to be heard; a right of access, to justice and a right to an effective remedy from the Judicial system; (ii) that the issue of legal representation of the parties in a representative suit is a pertinent one, capable of being heard on an appeal. lastly the case of Paul Wanjohi Mathenge versus Duncan Gichane Mathenge [2013] eKLR for the proposition that the Courta’, discretion under rule 4 is unfettered but it has to be exercised judicially, not on whim, sympathy or caprice; (ii) in exercising its discretion under the said rule the Court has to bear in mind the period of the delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted and whether the matter raises issues of public importance;(iii) failure to attach a draft memo of appeal is not fatal to an application for the extention of time under rule 4 of this Courts Rule.

From the above set of rival arguments and case law relied upon by the applicant, it is clear that what the applicant seeks from my seat of justice is the relief of leave to extend time within which to lodge a notice of appeal and record of appeal against the decision of Ang’awa, J of 16th December, 2011 out of time. The avenue for access to the relief sought is indicated as rule 4, 41, 42 and 75(2) of this Court’s Rules. Rules 41 and 42 and are merely procedural as these merely provide the mode of access; where as rule 75(2) stipulates a period of fourteen (14) days as the period within which a notice of appeal ought to be lodged upon delivery of the judgment or ruling sought to be impugned as the case may be. The substantive provision of access is therefore rule 4 of this Courts rules. It provides:-

“The Court may on such terms as it thinks just by order extend the time limited by these Rules, or by any decision of the Court or of a Superior Court for the doing of any Act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be constituted as a reference to that time as extended”

The parameters within which to extend the time so requested is what has now come to be popularly known as the exercise of this Courts judicial discretion under the said rule. It is now trite that the ingredients to be applied in the said exercise of this Courts discretion to either, grant or withhold this relief are those set by the decision of this Court in the case of Leo Sila Mutiso versus Rose Hellen Wangari Mwangi Nairobi CA No. 255 of 1997 wherein, this Court laid down this guiding principle.

“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 extention 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.”

I have accordingly applied these ingredients to the rival arguments herein. On the length of delay, it is clear that the decision sought to be impugned was made on 16th December, 2011. The application for extention of time is dated 11th day of October, 2013 and filed on 18th October, 2013, a period of one year nine months and two days. There is no doubt that this period goes beyond the fourteen (14) days period stipulated in rule 75(2) of this Court’s rules as the time permitted for the lodging of a notice of appeal against a decision sought to be impugned. The applicant’s intended appeal cannot therefore lie in the absence of an appropriate order extending the time frame within which to comply. The only caveat that this Court has to bear in mind is that, there has to be some reasonable explanation for inability or alternatively for failure to comply.

The explanation the applicant has given is basically that, they had hoped to joyride or band wagon on the notice of appeal that had been promptly filed by the firm of Ngoge & Co. Advocates on 16th December, 2011 intending to appeal against the same decision of Ang’awa, J; that upon a new firm of advocates coming on record for some of the respondents who had previously been represented by the firm of Ngoge & Co. Advocates, an application was successfully lodged by this incoming advocate vide which the notice of appeal, the applicant intended to joyride and or band wagon on was withdrawn and subsequently struck out, hence this fresh move to file a notice of appeal of their own. They contend they are still aggrieved; the point to be taken by them on the intended appeal is an arguable point of fundamental importance as found by this Court in Lawrence Ndatu & 6000 others CAPP.No. Nai 51/2013(Supra).

Mr. Namada, though not disputing the above set out facts has invited me to consider these facts as against the back drop of the applicants conduct first, of leaving the matter to the discretion of the Court when the issue was first raised before Ang’awa, J soon after the delivery of the ruling; secondly,their conduct of opposing the application for stay of the orders of Ang’awa, J of 16th December, 2011. On both of these occasions the applicant urged respect for a partys’ right to counsel of own choice. It is therefore Mr. Namada’s argument that the applicants’ about turn surfaced when they moved to oppose the respondents application to withdraw the notice of appeal on which they had intended to joy ride or band wagon. To Mr. Namada, this about turn is prejudicial to the respondents as it aims at perpetuating the delay in the disposal of the main suit in the High Court. Mr. Namada added that plaintiffs in the High Court suit are either dying or voluntarily withdrawing from the suit out of desperation which is to the advantage of the applicant.

I note from the record that a draft memorandum of appeal is not annexed to the application. Although this is not a mandatory requirement as demonstrated by the use of the words “possibly the success of the intended appeal” in ingredient three, in the Sila Leo Mutiso case, I note that there is reliance on the reasons given by this Court while granting an order of stay in Nai 51 of 2013, that the issue of multiple representation in a representative suit was a fundamental issue and therefore arguable. It has been brought to my notice that this order lapsed with the withdrawal and striking out of the notice of appeal in respect of which that supposition was made. It was therefore necessary for the applicant to annex to the supporting affidavit either his own draft memo of appeal or state the arguable point in the grounds in the body of the application or a deposition made to the effect in the supporting affidavit, none of which the applicant did.

Turning to the issue of prejudice to the respondents, I find the respondents stand to be prejudiced by the conduct of a party which has all along been holding itself out as not opposed to their course. Secondly, the continued pendence of the litigation in the High Court is hurting the respondents who were retrenched from their employment with the applicant many years back and are said to be either dying or opting out of the proceedings out of desperation.

In the result, I am satisfied that on the material before me, the applicant has not brought itself within the ambit of the criteria set in the case of Leo Sila Mutiso (Supra). For the granting to them of the relief sought of extention of time within which to file a notice of appeal and record of appeal against the decision of Ang’awa, J of 16th December, 2012. The application is therefore dismissed with costs to Mr. Namada who opposed the application.

Dated and delivered at Nairobi this 28th day of November, 2014.

R.N. NAMBUYE

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JUDGE OF APPEAL

I certify that this is atrue copy of the original

DEPUTY REGISTRAR

D/O