[2015] KEHC 2497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MISCELLANEOUS APPLICATION NO. 9 OF 2015

MERCY NYAMBURA KAMAU……………………….APPLICANT

VERSUS

HABEL MUCHEMI KOROI……………..........RESPONDENT

RULING

This is a Notice of Motion dated 4th February, 2014 brought by MERCY NYAMBURA KAMAUthe applicant. The motion is brought under Section 79 of the Civil Procedure Act and Order 50 rule 6 of the Civil Procedure Rules and seeks the following orders:

That this Hon. Court be pleased to grant leave to theApplicant to file appeal out of time against the Hon. Magistrate’s ruling delivered on 19thNovember, 2013 in Kerugoya C.M.C.C. No. 87 of 2011.

Costs of the application.

The application is based on the grounds on the face of the application the main being that the Applicant did not get typed proceedings and judgment on time and only obtained the same when time to appeal had lapsed. She blamed the delay in getting proceedings on time to the civil registry and maintained that she has a meritorious appeal with high chances of success. The same grounds are supported by the affidavit of the applicant sworn on 4th February, 2014 with the annextures.

Parties to this matter agreed to dispose the same through written submissions and I shall first consider the submissions made by the Applicant.

The Applicant’s submissions gave a history of the matter and its origin. She stated that she was sued in the subordinate court for malicious prosecution together with the Attorney General. She did not enter any appearance or defence as a result of which interlocutory judgment was entered and later final judgment where she was ordered to pay Kshs.200,000/- to the Respondents as general damages. Her attempt to set aside the exparte judgment was rejected by the subordinate court who found that she was duly served with summons to enter appearance and plaint and that the draft defence filed did not raise any triable issue. The Applicant was aggrieved by the ruling but again she failed to appeal on time arguing that she did not get the typed proceedings and ruling on time to enable her lodge an appeal.

The Applicant submitted that she applied for proceedings and the ruling on 21st November, 2013 after the ruling had been delivered on 9th November, 2013. She submitted that the typed proceedings and the ruling were ready for collection on 24th January, 2014 by which time the time of lodging an appeal had expired. Consequently she filed this present application on 4th February, 2014 which was ten (10) days from the time she was supplied with the proceedings.

The Applicant contends that her appeal is meritorious and has high chances of success as she opines that the trial magistrate never exercised his discretion judiciously in rejecting her application to set aside the exparte judgment. He further argues that the interlocutory judgment entered against her was discriminatory in view of the fact that the 2nd defendant (the Attorney-General) was not found liable yet the events leading to the liability were intertwined and there was no way liability could be found against the Applicant solely from the same facts and evidence. She also faults the exercise of discretion by the learned magistrate that saw the 2nd defendant being allowed to put in defence out of time saying that the same showed bias against the Applicant whose similar application was rejected.

The Respondent has opposed the application through a replying affidavit sworn on 17th February, 2014 and the written submissions dated 10th June, 2014. The Respondent’s main reason for the objection is that the Applicant has not been diligent in the case and is guilty of delaying tactics to deny justice to him. He argues that the reasons for the delay has not been explained and that there was no good reason why the Applicant chose to go to Muranga High Court when she knew that the matter emanated from Kerugoya where there is a high court station.

The Respondent has further contended that the Applicant’s chance of success in the appeal are zero given that the defence filed in the subordinate court contained mere denials and raised no issue for trial. He relied on two authorities in urging this court to dismiss the application for leave to appeal out of time. The authorities are:

MacWatt Estates Ltd – Vs Mbwanji Ltd. (C.A. at Nbi Misc.Applc. No. 247/00). (unreported)

Pointex(K) Ltd & 2 others –Vs Sanam Investments Ltd. (C.A. at Nbi Civil Applc. No. 280/02 also unreported.

I have considered the application, and the reasons advanced and the rival submissions made in opposition. I have also considered the cited authorities by the Respondent. The exercise of discretion by the Court of Appeal under Rule 4 of the rules in that court and some of the factors that the court considers are:

Length and reasons for the delay.

Chances of the appeal

Degree of prejudice if any to the respondent if the application is granted.

The principles in this Court under Section 79 G of Civil Procedure Actare slightly different as it is more or less limited to the 1st principle. Under Section 79 G of the Civil Procedure Act the law provides that an appeal from the lower court to this court should be filed within 30 days from the date of the decree or order appealed against and that the period of 30 days shall exclude the period in which the lower court may certify as having been requisite for the preparation and delivery of copy of decree or order. The section grants discretion for this Court to extend the above period and it provides as follows:

“An appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

An applicant is therefore required under the law to satisfy the court that the appeal is preferred to that the reasons for the delay are sound and satisfactory.

The Applicant in this application has given reasons for the delay in lodging her appeal on time. She has said that she did not get the proceedings and judgment on time. I have noted that the Applicant actually applied for the copy of proceedings on 21st November, 2013 through her counsel. The question however, that begs answers is whether the Applicant really needed the typed proceedings to lodge an appeal to this Court. The answer is in the negative. Under the provisions of Order 42 rule 1 and 2 an appellant is only required to file a memorandum of appeal with or without certified copy of the order or decree appealed from. The Applicant herein did not apply for a certified copy of the order or ruling to be appealed against from the lower court as envisaged under Section 79 G of the Civil Procedure Act.

The Applicant was duly represented by counsel who is expected to know the rules and the relevant provisions of the law. However at times a counsel for a litigant can make an honest but mistaken belief with devastating consequences to a litigant. I have considered the issues raised in the intended appeal and consider that the same deserve a chance in court to be ventilated. In this regard I am guided by the authority in the case of Baobab Beach Resort & Spa Ltd. -Vs- Duncan Miriuki Kiguru & Anor [2014] eKLR where Hon. Githinji J.A. quoting with approval the decisions in PAUL WANJOHI MATHENGE –VS- DUNCAN GICHARE MATHENGE [2013]eKLR and MURAI –VS- WAINAINA [1982] KLRmade the following observations:

“The delay was apparently caused by the counsel’s honest but mistaken belief that a competent appeal could not be filed without a certified copy of the order appealed from. There is no presumption that all advocates and judges know all the rules of the court………..a litigant depending on the circumstances can be relieved from mistakes of his advocate”.

The Applicant never really needed the typed proceedings to appeal. Proceedings are normally required for preparation of a record of appeal which can be done after an appeal has been lodged. I of course note that the Applicant after being supplied with the proceedings took ten (10) days to file this application. The period or the length of delay in my view though not explained is not inordinate and in any event I believe that the Respondent can be adequately compensated with an order of costs. The fears expressed by the Respondent about the intention by Applicant to delay the case can also be addressed by the condition which I will impose on her.

From the foregoing I allow the Notice of Motion dated 4th

February, 2014 as I find the same merited. The same is however, allowed with the following conditions for the interests of justice:

The appeal be filed and served within 7 days from the date of this ruling.

Costs of this application to be taxed or agreed together with costs taxed in the lower court shall be paid within 30 days from the date of this ruling.

The amount awarded in the subordinate court shall be deposited either in this court or in the joint names of counsels on record in this case within 30 days from the date of this ruling.

In default of any of the above conditions the judgment in the lower court shall revert.

It is so ordered.

Dated and delivered at Kerugoya this 30th day of September, 2015.

R.K. LIMO

JUDGE

30. 9.2015

Before Hon. Justice R. Limo

Court Assistant Willy Mwangi

Miss Jaguga holding brief for Kirubi for Applicant.

Ndema for Respondent absent

COURT: Ruling dated, signed and delivered in the open court in the presence of Jaguga advocate holding brief for Kirubi for applicant and in the absence of Respondent and his counsel.

R. K. LIMO

JUDGE

30. 9.2015