[2023] KEHC 20938 (KLR)

Kweya v Wikama & 2 others (Miscellaneous Application E006 of 2022) [2023] KEHC 20938 (KLR) (24 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20938 (KLR)

Republic of Kenya

In the High Court at Vihiga

Miscellaneous Application E006 of 2022

JN Kamau, J

July 24, 2023

Between

Francis Kongo Kweya

Applicant

and

Brenda Wikama

1st Respondent

Attorney General

2nd Respondent

Inspector General of Police

3rd Respondent

Ruling

Introduction 1. In his Notice of Motion dated September 21, 2022 and filed on September 22, 2022, the Applicant herein sought that he be granted leave to appeal against the whole Judgment of Hon SO Ongeri (SPM) delivered on January 28, 2020 out of time and that the Memorandum of Appeal that was annexed to his application be deemed as having been duly filed and served.

2. He swore an Affidavit in support of his said application on September 21, 2022. His case was that his then advocates, M/S Wekesa S Wekesa & Company Advocates dodged him and did not notify him when judgment was delivered in Vihiga PMCC No 86 of 2018 on January 28, 2020 and that he only came to learn of the same when he visited the Court’s Registry.

3. He applied for a typed copy of the Judgment with a view to deciding whether or not to appeal which he expected to get immediately but he received it on August 20, 2022 by which time, the time within which he could lodge an appeal had already lapsed.

4. He was aggrieved and dissatisfied with the said Judgment and had instructed his Advocates to appeal against the same. He asserted that the delay of about two (2) years seven (7) months that had been occasioned was not so inordinate as to have been inexcusable. He added that the Respondent would suffer no prejudice if his application was allowed as no execution would issue against them. He thus urged this court to enlarge such time so that he could file his appeal.

5. The 1st Respondent swore a Replying Affidavit on October 24, 2022 in opposition to the Applicant’s application. The same was filed on October 26, 2022. Her assertion was that all parties were aware of the Judgment date and that the Applicant had failed to adduce evidence to prove that he was not indolent, that the delay was occasioned by his former advocate or that he had applied for a typed copy of the judgment.

6. She termed his application a fishing expedition and averred that the delay was inordinate and contended that the Applicant ought to have visited the court’s Registry earlier when his advocate started dodging him.

7. She was emphatic that the Applicant had no good and sufficient cause for his failure to file the appeal on time and thus urged this court to dismiss his application.

8. When this matter came up for mention on March 1, 2023 to confirm if the parties had filed their respective Written Submissions, the Applicant’s counsel was absent. The 1st Respondent’s counsel informed the court that the Applicant’s Written Submissions were dated February 8, 2023 and filed on February 17, 2023 while its Written Submissions were dated February 25, 2023 and filed on February 27, 2023.

9. However, this court noted that the Applicant’s submissions which were to be placed in the court file were missing at the time of writing this Ruling. Instead, there were two (2) sets of the 1st Respondent’s Written Submissions. The 2nd and 3rd Respondents did not file any response to the Applicant’s application or file any Written Submissions. This Ruling is therefore based on the affidavit evidence and the 1st Respondent’s Written Submissions only.

Legal Analysis 10. The 1st Respondent submitted that the delay that was occasioned was an afterthought which was meant to torment and disturb her peace. She pointed out that the Applicant did not attach any Certificate of delay issued by the court to accompany the proceedings and Judgment. She added that the Applicant did not give any reasonable steps that he undertook after he realised that his Advocate had started avoiding him. She asserted that it was expected that any person would proceed to the court’s Registry to find out the position of their file but that the Applicant did not present any evidence to show that he ever made follow ups.

11. She argued that the grounds of appeal that the Applicant raised in his draft Memorandum of Appeal did not raise triable issues that could result into overturning of the Judgment by the Trial Court. She urged the court not to entertain the Applicant’s application as it was scandalous, frivolous and vexatious. She, however, pointed out that if in its wisdom the court found that the same was merited then it should allow it on condition that the Applicant deposits security for costs in court or in a joint account of both counsels herein.

12. She invoked Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 50 Rule 6 and Order 26 Rule 1,5 and 6 of the Civil Procedure Rules and placed reliance on the case of Silvia Kambura vs George Kathurima Japhet & 2 Others [2021]eKLR where it was held that the tort of malicious prosecution was an intentional tort that provided redress to a plaintiff for losses incurred following unsuccessful and malicious proceedings which were initiated without any lawful reasonable and/or probable cause by the defendant. She also cited the case of Mohamed Ali Osman t/a Hanan Petroleum vs Juanco Group Limited [2021] eKLR where it was held that while granting an order for payment of security for costs, the court ought to use its discretionary powers judiciously.

13. Right at the outset, this court found and held that it could not award an order for security for costs as the 1st Respondent had sought in her Written Submissions for the reason that the application that was presently before this court for determination only related to the question of whether or not the Applicant had demonstrated that he had met the threshold of being granted leave to file an appeal against the decision of the Trial Court out of time.

14. However, in the event the 1st Respondent still wished that the court grants an order that the Applicant deposit the security of costs, she was at liberty to file a formal application for consideration by the court. This was not an issue that the court could exercise its discretion on the basis of written submissions.

15. Having said so, the Respondents’ prayer that the Applicant deposit security of costs into court or into a joint interest account was not a condition precedent when dealing with applications where leave was sought to file an appeal out of time.

16. Indeed, in exercising its discretion to allow an application seeking extension to file an appeal out of time, a court had to be satisfied that the omission to file the same within time was excusable. In other words, there had to be a plausible explanation for the delay in filing the appeal.

17. It was apparent from the court record that the decision the Applicant intended to appeal against was delivered on January 28, 2020. The present application was filed on September 22, 2022. About two (2) years and seven (7) months had since passed. This was an inordinately long period. The fact that he was not aware of when the decision was delivered persuaded this court to find and hold that the delay in filing an appeal within the time stipulated in Section 79G of the Civil Procedure Act was inordinate and/or unreasonable and that the reason for the delay that the Applicant advanced was inexcusable.

18. Having said so, every party has a right to access any court or tribunal to have its dispute heard and determined in accordance with article 50(1) of the Constitution of Kenya, 2010. Even where a party delays in doing an act, there is always a provision that would give it reprieve to seek justice.

19. Notably, order 50 rule 6 of Civil Procedure Rules, 2010 empowers the court to enlarge the time to do a particular act. The said order 50 rule 6 of Civil Procedure Rulesstipulates as follows:-“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”.

20. Against this backdrop, this court therefore perused the draft Memorandum of Appeal that was annexed to the present application. It did not, however, consider the merits or otherwise of the grounds of appeal that were set out therein as that was strictly under the purview of the appellate court. All that it was expected to do was to consider if the Applicant herein had demonstrated that he had arguable grounds of appeal.

21. The grounds in the Applicant’s draft Memorandum of Appeal showed that he was aggrieved by the Trial Court’s decision to dismiss his case for malicious arrest and prosecution against the Respondents herein. The said grounds therefore sought that the appellate court determine if the Trial Court erred in law and in fact. These were arguable points of law.

22. Going further, in considering whether or not to grant an order for extension to do any act, the court was also required to consider if the opposing side would suffer any prejudice if extension of time was granted. This court did not see any prejudice that the 1st Respondent would suffer or was likely to suffer if the Applicant herein exercised his constitutional right of appeal. If there was any prejudice, then she did not demonstrate the same. Notably, as the Applicant had stated, no execution was to be levied against the Respondents herein as his suit was dismissed.

23. Taking all the factors hereinabove into account, it was the considered view of this court that that it was in the interests of justice (emphasis court) that the Applicant be given an opportunity to have his intended Appeal heard on merit as he would suffer actually prejudice if he was denied an opportunity to fully present his Appeal to be heard on merit.

24. Indeed, the power to grant orders in the interest of justice and/or for the ends of justice (emphasis court) is well captured in Section 3A of the Civil Procedure Act that states that:-“Nothing in the Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice (emphasis court) or to prevent abuse of the process of the court.”

25. Notably, the 1st Respondent submitted that all parties were aware of the date of delivery of the Judgment. However, she did not provide any evidence to demonstrate that indeed the Applicant was aware of the same. Having said so, it was the Applicant’s responsibility to have followed up to check on his matter. Failure to do so showed that he was indolent. He could therefore not be allowed to go scot free and had to pay costs to the 1st Respondent herein to compensate her for being taken back in litigation when she was expected to have presumed that there would be no further litigation in view of the long period the Appellant had taken to move the court.

Disposition 26. For the foregoing reasons, the upshot of this court’s decision was that the Applicant’s Notice of Motion application dated September 21, 2022 and filed on September 22, 2022 was merited and the same be and is hereby allowed in terms of Prayer No (1) therein on the following conditions:-1. That the applicant be and is hereby directed to file and serve his Memorandum of Appeal in the appropriate file within fourteen (14) days from the date of this Ruling.2. That the applicant be and is hereby directed to file and serve his Record of Appeal in the appropriate file within one hundred and twenty (120) days from the date of this Ruling.3. That the applicant be and is hereby directed to pay the 1st Respondent throw away costs in the sum of Kshs 30,000/= within one hundred and twenty (120) days from the date of this Ruling failing which the 1st Respondent will be at liberty to commence legal proceedings for the recovery of the same.4. That this matter will be mentioned on December 5, 2023 to confirm compliance of the order in Paragraph 26 (1) and (2) hereinabove and/or for further orders and/or directions.5. Costs of the application herein will be in the cause.6. Either party is at liberty to apply.

27. It is so ordered.

DATED AND DELIVERED AT VIHIGA THIS 24TH DAY OF JULY 2023J. KAMAUJUDGE