[2023] KEHC 26191 (KLR)

Modern Coast Bus v Machoni & another (Suing as the Legal Representative of the Estate of Geoffrey Mwanda Ombati) & another (Civil Miscellaneous Application E065 of 2022) [2023] KEHC 26191 (KLR) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26191 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Miscellaneous Application E065 of 2022

DKN Magare, J

December 5, 2023

Between

Modern Coast Bus

Applicant

and

Damaris Kerubo Machoni & Aloys Mwanda Ondieki (Suing as the Legal Representative of the Estate of Geoffrey Mwanda Ombati)

1st Respondent

Hadar Express Limited

2nd Respondent

Ruling

1. This is a Ruling over an Application dated 25/2/2022. The prayers that sought are as follows: -a.Leave be granted to file (appeal) out of time.b.The honourable court be pleased to stay of proceedings in Kisii cmcc 499/2017 pending the hearing and determination of the Applicant’s intended Appeal.

2. The grounds upon which the Application is made is that the Applicant intends to appeal against the decision made on 23/8/2021.

3. The other grounds, which are humongous, prolixious and unseemly, almost all, related to the purported merit of the intended appeal. They are a total of 18 grounds none of which cover the raison d’etre for not filing appeal within time. Only ground 11 approximates reason by stating that the instructing client was out of the country. No evidence was attached of this. In any case no one requires formal instructions to file a memorandum of appeal. The same can be failed as a precaution ex abundanti cautela. In any case there is evidence on where the instructions were sought.

4. The application was supported by the affidavit of Christine Mufutu who is said to be the Applicant’s operations manager. It is also fairly detailed with a total of 13 paragraph, wherein paragraph 8 is divided into 8 grounds. Once again the affidavit went into the question of merit of the Application intensely and filed to address the main question, why the delay.

5. The applicant filed lengthy submissions on 15/5/2023, which I have painstakingly read. They set out 2 issues, that is: -whether there is an arguable appeal and whether, the court has jurisdiction to extend time.

6. The Applicant also urged the court to apply discretion in its favour not to prevent an Appeal which was as of right. They relied on the decision of Mombasa County Government v Kenya Ferry Services & another [2019] Eklr.

7. The 1st Respondent filed a replying affidavit dated 21/3/2023. It is equally wordy and prolixious. It deals with the ruling obliquely in paragraph 17, where they state and rightly so that the delay is unexplained and inordinate. The delay is said to be for over 5 months. They state that the instructing client was overseas and could not provide instructions. They state that the explanation is not plausible.

Analysis 8. The issue before me is whether the delay in lodging a Memorandum of Appeal has been satisfactorily explained. If the reason for delay is not sufficient, then the issue as to whether stay of execution should be granted will not fall for determination because there will be no Appeal.

9. The factors to consider in dealing with such an application are: -a.The length of delay.b.The reason for delay.c.The animus of the applicant.d.The prejudice to the Respondent.

10. I will need to state at this early point that those 2 issues identified by the Applicant were not issues before the court. I agree with and defer to the supreme court decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014]eKLR, which the Applicants relied on and in which, the Supreme Court stated as doth: -“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

11. The law in respect to extension of time was captured succinctly in a decision referred to by the Applicant, that is Mombasa County Government v Kenya Ferry Services & another [2019] EKLR, where the Supreme Court (Ibrahim, Ojwang, Wanjala, Njoki, Lenaola, SCJJ) stated as doth: -“(26)Further, in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:“[24]a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.”(27)In the present case, we note there is no certificate of delay from the Deputy Registrar of the Court of Appeal. Further, we note that the Applicant has not annexed the typed proceedings and the decree to confirm that the same were obtained on 28th June 2018 and 5th July, 2018 respectively.”

12. It is therefore agreed that extension of time is discretionary. In the case of Republic v Non-Governmental Organizations Co-ordination Board & another ex-parte Transgender Education and Advocacy & 3 others [2014] eKLR the court, Justice G V Odunga, as he then was, addressed discretion in the following words.“It is now trite that there are circumstances under which the Court would be entitled to intervene even in the exercise of discretion. This Court is empowered to interfere with the exercise of discretion in the following situations:(1)where there is an abuse of discretion;(2)where the decision-maker exercises discretion for an improper purpose;(3)where the decision-maker is in breach of the duty to act fairly;(4)where the decision-maker has failed to exercise statutory discretion reasonably;(5)where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision-maker fetters the discretion given;(7)where the decision-maker fails to exercise discretion;(8)where the decision-maker is irrational and unreasonable.”

13. I dare add that when the court is making a decision based on discretion, it must bear the foregoing factors in mind. Discretion must as a corollary be exercised judiciously, not whimsically or capriciously. The 4 limbs for extension of time must be met. In the case of the Seventh Day Adventist Church East Africa Ltd. & Another vs. M/S Masosa Construction Company Civil Application No. Nai. 349 of 2005, Waki JA, as he then was held that:“As the discretion to extend time 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, (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 public administration, the importance of compliance with the time limits, the resources of the parties, whether the matter raises issues of public importance are all relevant but not exhaustive factors…In an application for extension of time, each case must be decided on its own peculiar facts and circumstances and it is neither feasible nor reasonable to lay down a rigid yardstick for measuring periods of delay as explanations for such delays are as many and varied as the cases themselves…The ruling striking out the appeal is not only necessary for exhibiting to the application for extension of time but also for consultations between the applicant’s counsel and their clients and the fact that the ruling was returned to Nairobi for corrections is a reasonable explanation for the delay… Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.”

14. I have perused the reasons for the delay in the Application and the Supporting Affidavit. The Applicant states that some unnamed person was out of this country for an unknown number of days and did not give unknown instruction and could not be disclosed of who this shadowy figure was. It is during the filling of a further affidavit that Christine Mufutu enclosed portions of a passport an purported letters.

15. They explain absolutely nothing about why there was a delay in filing a memorandum of Appeal. One of the documents relate to sickness of chronic nature since 2018 from Aga Khan Hospital. Of course the letter is specifically made for the case. It is neither supported by the person who is alleged to have been important nor its relevancy set out.

16. Further instructions to appeal do not seem to have been sought nor granted. I have seen that the deponent has authority to swear to the affidavit in support. Whither did power to authorize filing of the Appeal go?

17. The applicant herein being a company they knew or ought to have known the requirements of Section 79 G of the Civil Procedure Act which provides as hereunder: -“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 the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

18. The applicant failed to give a plausible reason for the delay. In the case of John Martin Muchiri Mugo v British-American Insurance Company (K) Limited [2018] eKLR, justice P.J.O. Otieno, stated as doth: -“From the narrative, the applicant allegedly became aware of the delivery of judgment on 22/6/2022. The Applicant sat on their rights till November, 2022 when they filed this application. There is no plausible explanation for the delay. I am thus not satisfied that there is explainable delay.From the record, what seems to have woken the Applicant is the filing of the party and party bill of costs on 30/8/2022 and served on 6/9/2022 as [per named annexture] in the Respondent’s affidavit. It is not ease to drive out a party from the seat of justice. However, a party who watches the seat of Justice rained on and only wakes up when someone else wants to seat on it, he does not call for mercy but condemnation. Equity only aids the vigilant. The Applicant was totally indolent. There is no explanation for the long delay.”

19. The Applicant delayed for over 5 months. The delay was not only inordinate, but has not been explained. Further, the issue of lack of instructions cannot be true. The advocate has not indicated when they sought the instructions they were waiting for and why they could not file a holding Appeal. A delay of over 5 months has not been explained and as such a delay is unexplained, inexcusable and inordinate.

20. Without a valid reason, this court has no jurisdiction to extend time. It is not manna to dish out. It is exercise of discretion. Unless the court is properly moved, it has no power to exercise discretion. It is not by whims but though judicious consideration that such an application is considered.

21. I don’t think the Applicant believed the story they gave. It lacks both plausibility and candour.

22. It is a lie nobody should ever tell. Even lies must mirror the truth to give credence to the court’s intelligence, even if, the Applicant may hold a different view of the level of intellectual prowess of the court.

23. Absolutely no attempt was made even to know who left the country, when he did so and why he was important to have him in the country, in this globalized world where the world has become not just a village but a one room house. They expect that due to lack of analytical skills and as such the courts will swallow the lies peddled hook, line, and sinker. This made me understand the frustrations of Justice CB Madan and Justice G V Odunga, as expressed in different times in the case of where justice Odunga, while referring to earlier frustrations by the famous Jurist stated as follows: -“Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR while referring to the reasoning of Madan J, (as he then was) in the case of N vs. N [1991] KLR 685. The Learned Judge lamented as follows:“Parties and Counsel ought to give the courts some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

24. Further, the draft memorandum was said to raise serious issues. The Applicant annexed a draft memorandum of Appeal. It is prolixious, wordy unseemly and repetitive. This is anathema to what the decisions of the court of Appeal and Order 42 Rule, 1 provides are doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

25. The court of Appeal had this to say in regard to rule 86 (which is pari materia with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in any way enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

26. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

27. I have also perused the draft Memorandum of Appeal. I did not see any appeal capable of being heard. It will be futile, even if the delay had been satisfactorily explained, to allow the application. The question of proper parties is a question of evidence. This is in line with Order 1 rule 7, Which provides as doth: -“When plaintiff in doubt from whom redress to be soughtWhere the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.”

28. There was no burden of proof on the Applicant, was a first defendant to proof that they are not to proof. The burden is on the party so alleging in line with sections 107-109 of the Evidence Act. These sections provide as doth: -“107. Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

29. The Applicant has not explained the delay. It is my considered opinion that the 4 factors above are sequential. Therefore, one must fulfil each as you move to the next. If the delay is inordinate, in may not be necessary to go to the reason for delay. When the delay is reasonable, there must be a real and genuine reason for delay.

30. Where there is doubt, either way, the court can then exercise discretion one way or another. The court cannot find that the delay is inexcusable, inordinate and no reason is given and then, out of sheer whims and fiat, extend time. That makes litigation unpredictable and unending.

31. In this matter, the reasons for the delay are strange. Some unknown person in a corporate entity left the country without a trace. There is therefore no explanation for in not filing a memorandum of appeal.

32. The Applicant delayed for over 5 months. The reason given is not genuine and has not been explained. In Salome Alice Akinyi v Aridempta Veronica Ooko & another [2019] eKLR, Justice J Kamau stated as follows regarding the issue of vigilance: -“24. It is correct as the Respondents submitted that “equity aids the vigilant and not the indolent.” However, it was the view of this court that although the Applicant had delayed in filing her appeal, the delay of four (4) months in bringing the application seeking leave to file an application out of time was not inordinate.”

33. The applicant was engaging the court in a futile wild goose chase without any plausible raison d’etre. This is a proper application to dismiss with costs of 35,000/=.

34. Before departing, I note that the lower court file was forwarded to this application, effectively stalling the hearing in the lower court, the lower court file is not necessary in determining this application. The original court file be returned forthwith and the primary file is hereby fixed for directions on 14/12/2023 before the chief magistrate’s court for purpose of taking a hearing date.

35. In future, the lower court file should not be brought to court for purposes of hearing of applications for extension of time.

Determination 36. In the circumstances I make the following orders: -a.The Application dated 25/2/2022 lacks merit and is accordingly dismissed with costs of 35,000/=.b.I direct that the matter in the lower court be prioritized and be had without further discontinuances unless for very good reasons.c.The original court file be returned forthwith and the primary file is hereby fixed for directions on 14/12/2023 before the chief magistrate’s court for purpose of taking a hearing date.d.In future, the lower court file should not be brought to court for purposes of hearing of applications for extension of time.e.The costs shall be paid within 30 days, in default execution to issue.f.The file is closed.

DELIVERED, DATED AND SIGNED AT KISII ON THIS 5TH DAY OF DECEMBER 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Kimathi for the ApplicantMr. Oremo for the RespondentCourt Assistant – Roselyn