[2017] KEHC 1538 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION - MILIMANI

CIVIL SUIT NO. 2533 OF 1997

LALCHAND FULCHAND SHAH.......................................1ST PLAINTIFF

RAMBHABEN LALCHAND SHAH..................................2ND PLAINTIFF

VERSUS

INVESTMENTS & MORTGAGES BANK LIMITED..............DEFENDANT

RULING

1. The Application now before the Court is brought by the Plaintiffs, It is dated 2nd March 2016 and was filed on the following day. The Application was filed under a Certificate of Urgency certified by an Advocate, Mr Neville Walusala Amolo of Amolo & Kibanya Advocates. In it he states that the Applicants intend to appeal against a Ruling of this Court delivered on 21st December 2015, which Ruling was to be delivered on notice. The Applicants say they were not aware of the date as they did not receive any notification of the date of the Ruling.

2. The Application is brought under “Sections Order 43, Rule 1(3) of the Civil Procedure Rules, 2010, Sections 3A, 66 and 75(1) of the Civil Procedure Act, the inherent power of the Court and all enabling provisions of the law”. The Application seeks the following Orders:

1. THATservice of this Application be dispensed with and the same be heard ex-parte and certified urgent in the first instance.

2. THATleave be granted to the Plaintiff/Applicants to file their Notice of Appeal out of time.

3. THATthe costs of this Application be in the cause.

The Application is brought on the Grounds listed on its face. In summary they are that the Ruling was delivered on or about 21st December 2015. Plaintiffs did not attend Court for the Ruling. The reason for that was that they were not notified or advised of the date when the Ruling would be delivered. The Plaintiffs are dissatisfied with the decision contained in the said Ruling and intend to appeal to the Court of Appeal

3. The Application is supported by the Affidavit of Lalchand Fulchand Shah. In it he states that he is authorised by the 2nd Plaintiff to file that Affidavit. It is asserted that the 14 days expired before the Plaintiff/ Applicants were informed that the Ruling had been delivered. It is further asserted that it is in the interests of justice that the Application be granted to enable the Plaintiff/Applicants to exercise and exhaust their legal rights on appeal. The Applicants also felt that due to the age of the case they should be given an early date.

4. At paragraph 4, the Deponent states that “the Judge allocated to hear the Application, was not sitting on 12th May, 2015”. Produced and marked “LFS 2” is a true copy of the Cause List for 12th May, 2015. He asserts that the Judge sat on 12th March 2015. Those assertions rely on hearsay evidence in the form of information from (1) his advocates, (2) a partial Cause List and (3) an annotation from an unidentified person on Exhibit “LFS 2. ” The comment “There was no Causelist out for Hon Justice F.Amin on 12/5/2015” is neither attributed not signed. He says his Advocates wrote to the Deputy Registrar on 4th August, 2015. The Applicant has not exhibited any Response to that Letter. He says he only discovered that the Ruling had been delivered when his Advocates were given a letter from The Deputy Registrar of the Commercial Division and copied to Walker Kontos Advocates stating that the Ruling “was delivered on 23rd December 2016 by Honourable Lady Justice Farah Amin.”. He says his lawyers subsequently discovered that the Ruling had been read on 21st December 2015 and that Mr Ogunde for the Second Respondent had been present at the time it was delivered. In relation to the delay, the Deponent states “THAT failure to file the Notice of Appeal within the Statutory Fourteen (14) days period was not deliberate but was due to the fact that I was not aware when the Ruling would be delivered as no Notice was sent to my lawyers”. He goes on to state that it is in the interests of justice for him to be granted leave to Appeal to enable him and the 2nd Plaintiff to exhaust their legal rights.

5. The Respondent opposes the Application and has filed Grounds of Opposition on 21st March 2016 dated the same day. The Grounds relied upon are brought (Under the Civil Procedure Act and all other enabling provisions of law) and listed and are as follows:

1. THATa good and sufficient cause has not been shown to merit grant of the application.

2. THATno useful purpose will be served in granting the application.

3. THAT granting the application will be inconsistent with the overriding objective of the Civil Procedure Act and Article 159 of the Constitution of Kenya 2010.

4. THATthe instant application is part of the Plaintiff’s scheme to prolong a vexatious claim aimed at keeping the Defendants under threat through numerous frivolous applications.

5. THATthe interest of justice is that the suit proceeds expeditiously.

6. THATthe intended appeal has no prospect of success. It is utterly vexatious and devoid of merit.

6. As far as hearing the Matter is concerned, it started out under a Certificate of Urgency Seeking ex-parte orders. The Court disagreed with that and the Applicants were ordered to serve the Respondent with the Application which they did three days later. The Matter came before the Court on 9th March when the Defendant/Respondent made an application for time to respond. That response, in the form of Grounds of Oppositionw as filed on 21st March 2016 which was outside of the time limit granted by the Court but the Applicants did not raise the point at subsequent hearings. The Matter was then Listed before this Court on two separate occasions when the Judge was known to have been on leave. Each time the dates were taken by the Applicant’s Advocates. Eventually the matter came befroe the Court for Hearing on 27th July 2016 and again it was the Applicants who wanted to delay the matter by filing written submissions. Although said to have been filed on 18th August 2016, those Submissions have not made their way to the Court file. The Applicant’s and their lawyers were made aware of that omission on 30th November 2016 and neither they nor the Deputy Registrars of the Division have taken any steps to ensure a copy is provided for the file. Mr Adoli,for the Applicants, in the knoweldge that there were no Written Submissions on file, decided to dispense with highlighting. The Respondents filed their Written Submissions on 29th November 2016 which was a day before the hearing although the Registry staff seemed to be labouring under the misapprehension that the Court was hearing a Mention.

7. The Plaintiffs’ Application simply put, is that they had absolutely no inkling that the Ruling would be delivered on 21st December 2015, and that it was in fact delivered on that day. They also suggest they had not opportunity to attend. The Plaintiffs have put forward a series of carefully selected documents and hearsay statement to create a scenario where they had been waiting completely in the dark about the progress of the matter. In view of the anxiety portrayed, it would have been surprising had they were willing to wait as patiently as suggested without making any inquiries and/or criticisms. They just waited and waited until the Respondents informed them that the Ruling had been delivered. Even then, they waited another three weeks before making this Application. That in its self is not completely plausible.

8. The Plaintiffs rely on a series of documents that are purported to emanate from official sources. However, given that both the author of the Letter dated 4th August 2016 and the Plaintiffs themselves have been so completely misguided about the true facts, that evidence cannot be considered reliable without corroboration. In the circumstances, the Court must consider what weight to give to the Plaintiffs evidence. The Plaintiffs also changed Advocates mid-application. By Notice of Change of Advocates filed on 13th June 2016 the Plaintiffs changed from the firm of Messrs Amolo Kibanya to the firm of Messrs Akoto & Akoto. Mr Adoli appeared on behalf of the Plaintiffs on 27th July 2016 to ask for directions for written submissions and also on 30th November 2016 when he was made aware that those submissions had not made their way onto the Court file.

9. Therefore the Court has before it an application that is supported by an Affidavit that is comprised almost entirely of hearsay evidence. In addition, the documentary evidence Exhibited is demonstrably factually incorrect, for example the date given for the Ruling on 23rd December 2015 should have been 21st December 2015. Whether that error emanates from a typing error or ignorance of the true facts, it demonstrates an lack of attention to detail. The Evidence is also incomplete, as noted by the Respondents the Applicants have neglected to exhibit all the correspondence passing between themselves and the Registry presenting only a selective picture. That is an assessment that can be applied to all the documentary evidence.

10. In its written submissions the Respondent relies upon Rule 75 of the Court of Appeal Rules. Under that Rule, if a party is dissatisfied with a decision of the High Court it must file, in the court that rendered the decision intended to be appealed from, a notice of appeal. That action must be taken within 14 days. as follows:

“75 (1) Any person who desires to appeal to the Court shall give notice in writing, which shall be lodged in duplicate with the registrar of the superior court.

(2) Every such notice shall, subject to rules 84 and 97, be so lodged within fourteen days of the date of the decision against which it is desired to appeal.”

The provision is mandatory.

11. However, as correctly asserted in the Application, the Court has discretion to extend that time limit. In exercising its discretion the Court must look at all the facts and matters that the Parties have brought before it. The Respondent asserts that in exercising its discretion to allow an application to file a notice of appeal out of the statutory timeline, the courts should be guided by the underlying principles. The Respondent relies on the Supreme Court’s in Nicholas Kiptoo Arap Korir Salat vs IEBS & 7 Others, SC Appl 16/2014 decision which sets out those principles, thus:

“(1) Extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;

(2) The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.

(3) As to whether the court should exercise the discretion to extend time, is a consideration to be made on a case basis.

(4) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.

(5) Whether there will be any prejudice to be suffered by the respondents if the extension is granted.

(6) The application should have been brought without undue delayand;

(7) In certain cases, like election petitions, public interest should be a consideration for extending time.

12. Also relied upon is Barclays Bank of Kenya Ltd v Martha Karwirwa Antony [2010] eKLRwhere the Court of Appeal held that:

“The above is clear. For the applicant to succeed in an application brought under rule 4 of this Court’s Rules, he needs to demonstrate the period of delay; the explanation or reasons for that delay, that the intended appeal as is the case here, is arguable but without going into the merits of the appeal or of the intended appeal; that the respondent will suffer no prejudice if the application is granted and other matters stated in the above ruling. It will be noted however, that the above decision emphasizes the need to comply with the time limits. One cannot also forget that when considering such an application the court also needs to and indeed does consider the overriding objectives which in a case of this nature cuts both ways as inordinate delay by the applicant to take action may defeat the requirement to have cases finalized expeditiously whereas at the same time minor hiccups may have to be ignored lest injustice results from undue regards to technicalities”.

13. On that basis the Respondent submits that the Applicants are not deserving of the orders sought In addition the Respondents question whether the Applicants have come to Court with clean hands and rely upon the Ruling of Musinga J. in Kisii HCCC No. 18 of 2009 Marwa Distributors Ltd & Anor vs Kenya Commercial Bank Limited which is unreported. The Submissions assert that the Applicants have not approached the court with clean hands. In the main the Respondents rely on the question of delay which is set out thus:

In particular, this matter commenced by way of a suit filed on 8th October 1997. Since then, the Applicants have engaged the Respondent through numerous applications all intended to stop the Respondent from exercising its statutory power of sale. The said applications have been the subject of adjudication by the Court of Appeal and in all instances the Applicants have not succeeded. The Respondent shall crave leave of Court to refer to the contents of paragraph 1 of the Ruling of Learned Judge Farah S. M. Amin delivered on 21st December 2015 in that regard.

14. The Respondent submits that present application is yet another ploy by the Applicants to forestall the expeditious disposal of this matter. The Applicants are guilty of abuse of the court process through filing the aforesaid numerous applications. The Court ought to decline the orders sought in the present application as the same is not lodged for proper purposes.

15. On the issue of clean hands the Court must take into account the conduct of the Applicants. Aside from the issue of delay which can be assessed from the fact that the suit was filed nearly 20 years ago is the fact that the Applicants were asking for an ex parte order. That places upon them the duty of full and frank disclosure. The Applicants have not satisfied that duty. Noteably missing from their evidence is the fact and the correspondence passing between the Plaintiffs’ then Advocates, Amolo & Kibanya Advocates and the Office of the Chief Justice which related directly to the issue of the date on which the Ruling would be delivered. That is a non-disclosure and that non-disclosure is material. That omission makes what is now placed before the Court misleading. In addition, the Ruling was published in the Kenya Law Reports so the Applicants, through their lawyers would have discovered it was delivered in that way as well.

16. Dealing with the issue of relative prejudice. If the Court grants the application the Respondent will suffer prejudice as it has the same suit hanging over it for neigh on 20 years. Even the case management conference was delayed when a further application for joinder was made. That is a real prejudice to an commercial undertaking. As far as the Plaintiffs are concerned. An application for joinder can be made at any stage of the proceedings if the facts and issues justify such joinder. There is nothing to stop the Plaintiffs making that application should a genuine need for it arise. This Court has already expressed its view upon that issue. In the circumstances, there is not prejudice that is readily apparent that would be visited on the Plaintiffs should this application be dismissed.

17. In the circumstances, there is no alternative but to dismiss this Application with costs. Such costs to be assessed on an indemnity basis. That is justified following the finding on the evidence

It is so ordered,

FARAH S. M. AMIN

JUDGE

DELIVERED, SIGNED & DATED at NAIROBI this 3rd November 2017

In the presence of :

Clerk: Patrick

Applicant:

Respondent: