[2017] KEHC 1860 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

MISCELLANEOUS CIVIL APPLICATION NO. 27 OF 2017

MAREE AHMED......................................1ST RESPONDENT/APPLICANT

S.M. LARDHI..........................................2ND RESPONDENT/APPLICANT

Versus

LELI CHAKA NDORO..................................APPELLANT/RESPONDENT

RULING

[NOTICE OF MOTION DATED 28TH APRIL, 2017]

1. Through the Notice of Motion application dated 28th April, 2017 the applicants, Maree Ahmed and S.M. Lardhi ask for two main orders namely leave to appeal out of time and stay of execution pending the hearing and determination of the intended appeal. The application which is brought under Section 7 of the Appellate Jurisdiction Act, Cap. 9, Rule 4 of the Court of Appeal Rules, Section 95 of the Civil Procedure Act, Order 50 Rule 6, Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010 is supported by grounds on its face and the supporting affidavit sworn on the date of the application by Allan Odongo, the applicants’ advocates.

2. In brief, the applicants’ case is that the judgement they seek to appeal against was delivered on 22nd February, 2017 and the statutory 14 day period for filing a notice of appeal had lapsed before they could file a notice of appeal. It is the applicants’ case that failure to file a notice of appeal on time was occasioned by delay in obtaining a copy of the judgement and also in seeking and obtaining instructions to appeal. According to the applicants, the delay was due to circumstances beyond their control or that of their advocate and in any case the delay is not inordinate. Further, that the intended appeal raises solid issues of law and has overwhelming prospects of success. Also, that they stand to suffer irreplaceable loss and damage as there is imminent threat of execution of the decree by the Respondent which would render the intended appeal nugatory.

3. The Respondent, Leli Chaka Ndoro opposed the application by swearing an affidavit dated 26th May, 2017 averring that a typed copy of the judgement in issue was released on the date of the delivery of the judgement. It is the Respondent’s averment that after the delivery of the judgement he wrote to the applicants to settle the decretal sum via letters dated 22nd February, 2017, 23rd March, 2017 and 25th April, 2017, which letters the applicants failed to even acknowledge, and the aim of the intended appeal is to deny him the fruits of judgement.

4. The Respondent avers that a prudent advocate would have filed a ‘holding’ memorandum of appeal. It is the Respondent’s case that he is aware that the actual applicant in this case is Directline Insurance Company, the insurer of the applicants. It is his case that the insurer who had been represented throughout the trial and the appeal by the same advocates, ought to be aware of the law and the negative inference to be drawn by failing to file an appeal on time.

5. It is the Respondent’s averment that the delay is inordinate and in the circumstances an abuse of the court process.

6. In the Respondent’s view, the appeal has no chances of success. In addition to this, it is stated that the applicants were indolent and discretion being an equitable remedy, they ought not to benefit. In the Respondent’s estimation there are no grounds for stay advanced in the supporting affidavit. Further, that there is no allegation that the Respondent has no means to refund the decretal sum as there is evidence in the lower court proceedings of his employment.

7. The parties advanced their cases through written submissions. The applicants submitted that this court has jurisdiction under Section 7 of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules to extend the time for filing an appeal. That the import of Rule 41 of the Court of Appeal Rules allows an applicant to either approach the Court of Appeal or the High Court for enlargement of time. Reliance is placed on the decision in the case of Edward Njane Nganga & another v Damaris Wanjiku Kamau & another [2016] eKLR.

8. The applicants invoked the principles applicable to extension of time to file an appeal as laid by the Court of Appeal in Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited [2015] eKLR and as supported by other Court of Appeal decisions cited therein.

9. It is the applicants’ assertion that the ends of justice would be served by allowing the intended appeal to be heard on merit. They emphasize the need for the court to invoke its inherent jurisdiction as conferred upon it by Section 3 of the Civil Procedure Act and sections 1A and 1B of the Appellate Jurisdiction Act. They hold the view that they have provided sufficient cause for the delay. They place reliance upon the case of Wachira Karani v Bildad Wachira [2016] eKLR.

10. On the need to establish an arguable appeal, they state that arguable points have been raised in the intended appeal.

11. On the application for stay of execution, they point to Rule 5(2)(b) of the Court of Appeal Rules that grants the Court unfettered discretion to order stay of execution pending appeal. They urge that the appeal is arguable and would be rendered nugatory if the stay of execution is not allowed. They rely on the decision in Civil Application No. 156 of 2006 Ishmael Kagunyi Thande v Housing Finance Company of Kenya to support their submission on the said point. They further urge that the Respondent has not furnished the court with evidence of his capacity to refund the decretal amount in the event the intended appeal succeeds.

12. The Respondent on the other hand urged that Rule 75(2) of the Court of Appeal Rules requires a notice of appeal to be filed within fourteen days from the date of the decision being appealed against. It is the Respondent’s position that time is of essence and only sufficient cause can avail an extension. On this, reliance is placed on the Supreme Court decision in the case of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR. It is the Respondent’s case that the applicants have not demonstrated sufficient cause for the delay considering that the same advocates represented them at the trial and at the first appeal. Further, that both parties were present through their representatives during the delivery of the judgement. It is contended, that the typed judgement was availed on the date of the delivery of the judgement and that this averment has not been controverted.

13. The Respondent submits that there is no evidence or explanation offered on what attempts had been made to obtain the said judgement during the three months preceding the application. Reference is made to the Supreme Court decision in the already cited case of County Assembly Of Kisumu to show that delay in getting typed proceedings is not of itself sufficient cause to justify delay and each case must be considered on its set of circumstances.

14. The Respondent opines that the grounds disclosed in the intended appeal do not disclose an arguable appeal. It is further submitted that this court lacks jurisdiction to grant orders under Rule 5(2)(b) of the Court of Appeal Rules as it is only the Court of Appeal that has jurisdiction to exercise discretion under that provision.

15. It is the Respondent’s case that he suffered debilitating injuries in the accident requiring constant medication and a stay of execution pending appeal shall further delay his access to the fruits of judgement.

16. The question is whether leave to file appeal out of time should be granted and if so, whether stay of execution should issue pending the hearing of the intended appeal.

17. None of the parties deemed it fit to provide the court with the decision that the applicants desire to make a subject of the intended appeal. Be that as it may, I will make my decision on the available material.

18. It is the Respondent’s case that this court lacks jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules to grant the prayers sought by the applicants. Courts derive jurisdiction from the Constitution and statute. Through Article 162 the Constitution establishes a system of courts. The Court of Appeal and the High Court are distinct courts with separate jurisdiction as per Articles 164 and 165 which establishes them.

19. The Appellate Jurisdiction Act confers jurisdiction on the Court of Appeal to hear appeals from the High Court whereas Rule 2 of the Court of Appeal Rules define the Court to mean “the Court of Appeal and includes a division thereof and a single judge exercising any power vested in him sitting alone.”

20. It is thus clear that the Appellate Jurisdiction Act and the Court of Appeal Rules do not confer any jurisdiction upon the High Court. Rule 5(2)(b) of the Court of Appeal Rules was therefore wrongly invoked by the applicants in seeking stay of execution pending appeal. It is, however, noted that the applicants also cited Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 which empowers this court, as the court being appealed from, to stay execution of its decree or order for sufficient cause.

21. I did not hear the Respondent say that this court does not have power under Section 7 of the Appellate Jurisdiction Act to extend time for giving notice of intention to appeal from the judgement of this court. That such power exists was stated by the Court of Appeal (Githinji, JA) in the case of Kenya Airports Authority & another v Timothy Nduvi Mutungi, Court of Appeal, Civil Application No. NAI 165 of 2013. The decision of Odunga, J in Nyamodi Ochieng Nyamogo v Telkom Kenya Limited, Nairobi H.C.C.C. No. 1736 of 1993 is also relevant. His observation is that:

“It is clear that the High Court’s powers under section 7 aforesaid is limited to three instances and these are giving notice of intention to appeal from a judgment of the High Court and for making an application for leave to appeal or for a certificate that the case is fit for appeal.”

22. The question would then be whether the applicants have satisfied the court that time should be extended for them to give notice of their intention to appeal.

23. According to Rule 75(1) and (2) the Court of Appeal Rules, 2010, a person who desires to appeal to the Court of Appeal shall give notice in writing to be lodged within fourteen days of the date of the decision against which it is desired to appeal.

24. The judgement was delivered on 22nd February, 2017 and the fourteen days within which to give notice to appeal lapsed on 9th March, 2017. The instant application was filed on 22nd May, 2017 thus a delay of two months and twelve days.

25. The power to enlarge time is a discretionary one and should be exercised judiciously. It is upon the party who seeks enlargement of time to convince the court that there was good reason for failure to comply with the timelines.

26. In Stanley Kaharo Mwangi(supra), the Court of Appeal in considering the principles guiding the Court on an application for extension of time, followed its previous decision in Fakir Mohammed v Joseph Mugambi & 2 others, Civil Application No. NAI 332 of 2004 (unreported) in which it had been held that:

“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the structure of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant.The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of the delay on pubic administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance – are all relevant but not exhaustive factors.”

27. The reasons given in the instant application is that the court judgement was not available and there was need to seek instructions from the client as to whether to appeal.

28. On the non-availability of the judgement, the Respondent averred that the judgement was availed on the day of the delivery. I agree with the Respondent that this averment has not been controverted.

29. Even assuming that the judgement was indeed not available, the applicants have not demonstrated the steps they took to secure the judgement. Such steps would be evidenced by letters written to the Deputy Registrar of this court. Indeed the supporting affidavit is silent on the date the judgement became available.

30. In the case of County Executive of Kisumu (supra) it was stated that:

“In the present case, while there is indeed a certificate of delay from the Deputy Registrar of the Court of Appeal, this alone does not suffice for the court to indulge the applicant and grant an extension.”

31. In the case before me there is no certificate of delay from the Deputy Registrar of this court and neither is any explanation for the alleged delay in securing the judgement offered. I therefore agree with the Respondent that the claim that the non-availability of the judgement delayed the filing of a notice of appeal is not a good reason for extension of time.

32. The other reason is that there was need to take instructions on whether to appeal. In an advocate-client relationship who drives the other? It is the client who places his/her desires before the advocate who then gives advice as to the next cause of action. Once the judgement was delivered and the information passed to the client, as the advocate was expected to do, the client was supposed to make up its mind quickly in view of the timelines as to the next cause of action. The excuse of instructions being awaited does not hold water. It is not a good reason for extending time.

33. The end result is that the application to extend time to file the notice of appeal fails. The application for stay of execution pending appeal naturally dies with it.

34. The conclusion is that I find no merit in this application. The same is dismissed with costs to the Respondent.

Dated, signed and delivered at Malindi this 30th day of November, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT