[2022] KEHC 11579 (KLR)

Mbuthia & another v Commissioner of Co-operatives & another (Civil Miscellaneous Application E559 of 2020) [2022] KEHC 11579 (KLR) (Civ) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11579 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E559 of 2020

DO Chepkwony, J

May 16, 2022

Between

Jackson Mwangi Mbuthia

1st Appellant

Simon Ndirangu Mwangi

2nd Appellant

and

Commissioner of Co-operatives

1st Respondent

Kukena Sacco Society Ltd

2nd Respondent

Ruling

1. Before the court for determination is the Intended Appellants/ Applicants Notice of Motion application dated 16th December, 2020 which seeks for the following orders:a.That the Honourable Court be pleased to grant leave to the Appellants to lodge an appeal against the Ruling of the Co-operative Tribunal in CTC No.17 of 2019 out of time.b.That The Draft Memorandum of Appeal annexed to the application herein be deemed to be duly filed upon payment of the requisite fees.c.That there be a stay of the intended surcharge of the Applicants pending the hearing and determination of this application.d.That the costs for this application be in the intended appeal.

2. The Application is premised on grounds that the Applicants were aggrieved by the decision of the Co-operative Tribunal delivered on 29th October, 2020 in CTC No.17 of 2019, that the tribunal was closed for fumigation on 1st November, 2020 and the Applicants were only able to apply for a copy of the Ruling on 3rd November, 2020 which was later supplied on 15th December, 2020. The Applicant also avers that the instant application was filed a day after the ruling was received thus the delay was occasioned by the tribunal.

3. The Application is further supported by the affidavit sworn by the 1st Appellant/Applicant wherein he has deponed that a similar application seeking extension for time to appeal against an intended surcharge and stay thereof had been filed before the tribunal on 10th December, 2019 but declined by the Tribunal in its Ruling delivered on 29th October, 2020. Subsequently vide a letter dated 3rd November, 2020, the Applicants sought for typed proceedings for purposes of compiling an appeal, but the efforts were thwarted by closure of the Tribunal’s premises due to Covid – 19. The Ruling was then finally availed to the Applicants on 15th December, 2020, thus the delay in filing the appeal is attributed to closure of the premises which the Applicant states was beyond its control.

4. The Respondents oppose the application and in doing so, have filed Grounds of Opposition dated 5th February, 2021 and a Replying Affidavit sworn by the 2nd Respondent’s Chairman on 5th October, 2021. The Grounds of Opposition advanced have first challenged the court’s jurisdictional authority stating that that the 2nd Respondent Sacco is based in Kerugoya and there is a competent court there, which can hear the Applicant in that jurisdiction. It is also averred that the Applicants have not given any reason for delay in filing the appeal or why the court should exercise its discretion in their favour.

5. In the Replying Affidavit, the Applicants are faulted for failing to disclose that there were three related matters before the Tribunal which were consolidated, and a common Ruling delivered. It is also averred that since the Applicants were indolent in filing the appeal, they are undeserving of the orders of stay being sought. Lastly, the deponent has expressed the view that the intended appeal has raised no arguable points because the tribunal clearly articulated that it lacks the jurisdiction to grant stay or extension of time in an intended surcharge.

6. As agreed to by counsel for the parties and directed by the court, the application was canvassed by way of written submissions and the record shows that the Applicants filed their submissions dated 24th August, 2021 whilst the Respondent filed theirs on 24 March, 2022. I have read through those submissions and since they reiterate the grounds in the affidavits as summarized above, I wish not replicate the same here, but will highlight the same in my analysis and determination of the instant case.

Analysis and Determination 7. I have considered the Applicant’s application, the Affidavits sworn in support and in rebuttal of the Application, the Respondents’ grounds of opposition, the written submissions filed on behalf of the parties as well as the authorities cited by each respective parties. I find that the sole issue for determination is whether the Applicants are entitled to an extension of time to lodge an appeal.

8. Before delving on that issue, the first issue to be addressed is that of stay of execution which parties have equally submitted on. The applicants seek for an order of stay of the intended surcharge whilst the Respondents submit that an order for stay can only issue where a party satisfies the conditions under Order 42 Rule 6 of the Civil Procedure Rules. In that respect, the Respondents are of the view that the Applicants have not established any substantial loss they are likely to suffer or any willingness to provide security. The Respondents have then urged the court not to grant any orders for stay.

9. The issue of stay does not raise for determination for inter alia reasons that; the Notice of Motion Application dated 16th December, 2020 under prayer (3) only seeks for an order of stay of the intended surcharge of the applicants pending the hearing and determination of the application. That prayer has now been overtaken by events as there is no such prayer for stay pending the determination of the intended appeal, thus the court cannot grant that which is not sought by the Applicant lest the court be seen as entering upon the realm of speculation. The foregoing flows from due consideration to the trite principle in law that parties are bound by their own pleadings and even the court itself is bound by those pleadings as they are.

10. As for the issue of whether the Applicant should be granted the extension of time for filing the record of appeal, the operational provision in law is Section 79G of the Civil Procedure Act. TheSection provides as follows:“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 theAppellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

11. The Court of Appeal in the case of Mwangi –vs- Kenya Airways Ltd [2003] KLR laid out some guiding principles which have been widely accepted by courts when exercising the discretion whether to extend time to file an appeal out of time. They include the following:a.The period of delay;b.The reason for the delay;c.The arguability of the appeal;d.The degree of prejudice which could be suffered by the Respondent is the extension is granted;e.The importance of compliance with time limits to the particular litigation or issue; andf.The effect if any on the administration of justice or public interest if any is involved.

12. In the present case, the Ruling sought to be appealed against was delivered on 29th October, 2020. The thirty (30) days within which an appeal could have been filed expired on 30th September, 2020. Whilst the application at hand was filed on 16th December, 2020, the Applicants submitted that they applied for copies of the Ruling on 3rd November, 2020 but the same was not supplied until 15th December, 2020. As such the Applicants attribute the delay to laxity on part of the Tribunal but the Respondent oppose the reasons given stating that it is not persuasive enough to excuse the delay.

13. The question which arises is whether such delay, dependent on the surrounding circumstances can be considered inordinate. I have considered the annexures attached to the application and find out that it is indeed true that the tribunal issued a memo dated 1st November, 2020 communication the closure of its registry for seven days, the Plaintiff averred that indeed that closure extended up for further three (3) weeks. Owing to that closure the Ruling was later availed on 15th December, 2020 and this application was filed the very next day. It is worthnoting that the delay exhibited by the Applicant is relatively about one (1) month and sixteen (16) days.

14. Looking at all those factors in totality and the explanation presented, I am persuaded that the delay exhibited cannot only be considered inordinate, but is partly attributable to factors beyond the Applicant’s control. As such, it would be against the call of justice to hold the applicant accountable for a delay partly caused by the tribunal’s registry. In addition, the Respondents have not tendered any evidence of the prejudice they are likely to suffer if the Applicants are allowed to lodge the appeal out of time. Given the explanation tendered, I am persuaded that the delay in this matter is excusable.

15. Lastly, looking at the Draft Memorandum of Appeal filed, I am unable to state at this juncture if the intended appeal is in-arguable. Of course, at this stage, the Applicant is not required to persuade the Appellate court that the intended appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Applicants have plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict. A fair perusal of the draft Memorandum of Appeal a demonstration that the Applicants have discharged this burden.

16. Accordingly, the Notice of Motion application dated 16th December, 2020 be and is hereby allowed in the following terms:-a.The Applicants be and are hereby granted leave to appeal out of time.b.The Applicants to file and serve a Draft Memorandum of Appeal within 14 days from today.c.The Deputy Registrar to avail the original record of proceedings from the lower court to enable the Applicant file and serve the Record of Appeal within 30 days of filing the Draft Memorandum of Appeal.d.Failure to comply with (a) and (b) above, the leave granted herein will be rendered automatically vacated.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 16THDAY OF MAY, 2022. D.O CHEPKWONYJUDGEIn the presence of:No appearance for and by the AppellantsNo appearance for and by 1st RespondentMr. Mabechi counsel holding brief for Mr. Mathenge counsel for 2nd Respondent