[2020] KEHC 7251 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CIVIL APPLICATION NO. 305 OF 2019

MOHAMED SHEIKH FARAH (Suing as the administrator and legal representative of the estate of

KHADIJA TAHIRA NYANGUTHII).......APPLICANT

-VERSUS-

ATHMAN ABOUD ATHMAN........1ST RESPONDENT

MOHAMED ABDUL KADIR........2ND RESPONDENT

SHURIE TRUCKS LIMITED.......3RD RESPONDENT

RULING

1. The Applicant approached this court by way of Notice of motion application dated 22nd July, 2019 seeking for the following orders:-

a. That the Applicant herein be granted leave to appeal out of time against the whole judgment of Honourable J.M Nang’ea in CMCC No. 2345 of 2015, Mohamed Sheikh Farah (Suing as the administrator and legal representative of the estate of Khadija Tahira Nyanguthii) -vs- Athman Aboud Athman & Another, delivered on 31st May, 2019.

b. That the costs of this application be in the cause

2. In the grounds supporting the application, it was argued that upon delivery of the judgment, the Applicant’s advocates followed up in the registry to obtain certified copies of proceedings and judgment but in vain. By the time the Applicant obtained the certified copy of judgment, the limited time for filing an appeal had lapsed. Hence, it was submitted that the delay was due to reasons beyond the applicant’s control. It is further argued that that the intended appeal raises arguable issues with high chances of success. Lastly, it is stated that the appeal has been lodged without inordinate delay and the Respondents stand to suffer no prejudice whatsoever if the application is allowed.

3. The application is supported by an affidavit deposed by Mohamed Sheikh Farah, the applicant, in which he buttresses the grounds in support of the application.

4. The application was however opposed by the 2nd and 3rd Respondents vide the grounds of opposition dated 5/11/2019 and filed on 6/11/2019. The said grounds are:-

a. That the application is frivolous and an abuse of the process of this honourable court.

b. That the application is bad in law, incompetent and totally defective.

c. That the application has been filed after inordinate delay the decision of the subordinate court having been given on the 31/5/2019. The application has therefore been overtaken by events.

d. That the Applicant is directly to be blamed for the inordinate delay for the following reasons:-

i. He was served with the Ruling/Judgment Notice from the Honourable Court dated 27/05/2019.

ii. He failed to appear on the said date or send a representative to take the Judgment.

iii. The Applicant seeks to benefit from his own acts of omission or commission.

iv. The Applicant has slept on his rights and is guilty of laches.

e. That application is prejudicial to the Defendant/Respondent as it seeks to deny the Defendant its constitutionally express right to enjoy the fruits of the Judgment.

f. That the application ought to be dismissed with costs.

5. The 1st Respondent never participated in the proceedings. On 4/11/2019, parties were directed to dispose of the application by way of written submissions. The Applicant’s submissions are dated 4/12/2019 and filed on 5/12/2019. The 2nd and 3rd Respondent submissions are dated 11th December 2019 and filed on the 13/12/2019.

The Applicant’s submissions

6. It is submitted therein that the issues for determination as well as the principles that guide the Court in the exercise of its discretion to extend time were laid out in the case of Nicholas Kiptoo Korir Arap Salat –vs- Independent Electoral & Boundaries commission & 7 others (2014) eKLRas follows:-

a. Whether the delay in lodging the Appeal has been explained

b. Whether there will be any prejudice suffered by the Respondents if the orders of extension of time are not granted

c. Whether the application has been filed without unreasonable delay.

7. On the first issue, whether sufficient cause for not filing the appeal in time has been shown; it is submitted that the Applicant was unable to obtain certified copies of the proceedings as well as a copy of the Judgment despite numerous letters to the Executive Officer of this court with regard to the same that at the time when the Applicant received the certified copy of the Judgment, the Applicant submits that the prescribed time for appeal had lapsed and urges the court to find that the delay has been sufficiently explained. Reliance was placed on Section 95 of the Civil Procedure Actand the case of County Executive of Kisumu –vs- County Government of Kisumu & 8 others [2017] eKLR.

8. On the second ground, it is submitted that no prejudice will be occasioned upon the Respondents if the application is allowed because the Respondent will not be calling any witness and in any case the Respondents did not demonstrate any prejudice they might suffer. It is further argued that since the delay was occasioned by circumstances beyond the control of the Applicant, if the application is not allowed then prejudice will be occasioned on him despite having an arguable appeal.

9. On the third ground; as to whether the application has been filed without unreasonable delay, it is submitted that the Judgment was delivered on 31/5/2019 whilst the instant application was filed on 25/7/2019. It is argued that the application was filed immediately after obtaining copies of the Judgment and that a period of less than a month is not inordinate.

10. In view of the foregoing, the Applicant is of the view that it has demonstrated sufficient grounds to warrant the grant of the stay of execution orders sought herein and leave to appeal out of time and prays that the application be allowed as prayed.

The 2nd and 3rd Respondents’ submissions

11. The submissions reiterate the grounds filed in opposition of the application. It is argued that the application is frivolous and an abuse of the process of the court because the Applicant is guilty of material non-disclosure and an afterthought having failed to attend the court on the date set for the delivery of the Judgment. The Respondents are of the view that the Applicant cannot therefore seek to invoke the court’s discretion for its own acts of omission.

12. It is the 2nd and 3rd Respondents’ submissions that the application is bad in law, incompetent and fatally defective for failure to file a memorandum of appeal pursuant to the provisions of Section 79 G of the Civil Procedure Act Cap 21, Laws of Kenya. In that vein, it is argued that equity does not aid in vacuum hence the application is not competent enough to invoke the court’s discretion. The argument is buttressed by excerpt from the case of Postal Corporation of Kenya –vs- Job Gachenge Njagi H.C.C.A No. 90 of 2004where Justice A, Visram (as he was then) held that:-

“…. The only way in which an Appeal is commenced in the High Court is by way of Memorandum of Appeal”

13. Further reliance was in the cases of: Ponderosa Logistics Ltd –vs- Ayub Wesonga (2017) eKLR, Martha Wambui-vs-Irene Wanjiru Mwangi (2015) eKLRand Masoud M. Y. Noorani –vs- General Tyres Sales Ltd. (2014) eKLRwherein the court, in both cases held the view that the correct procedure to approach the court under Section 79 G of the Civil Procedure Act is first to file the memorandum of appeal then seek that the same be deemed filed within time.

14. The 2nd and 3rd Respondent faults the Applicant for not applying and retrieving the court order; pursuant to the provisions of Section 65(1) of the Civil Procedure Act, against which he seeks to enlarge time. It is argued that the Applicant has fallen short of those Legal requirements and therefore the application cannot stand. To support this line of argument, reliance is placed on the decision in the cases of: Martha Wambui-vs-Irene WaNJIRU Mwangi (2015) eKLRand Gerald m’Limbine –vs-Joseph Kingangi Misc. App No. 40 of 2007as cited in Ponderosa Logistics Ltd –vs- Ayub Wesonga (supra).

15. Finally, it is argued that the delay of 24 days in filing the appeal has not been sufficiently explained and where delay has not been explained, leave ought not to be granted. It is submitted therein that the Applicant has not obtained a certificate of delay hence the court should not assist an applicant who is indolent, as equity only aids the vigilant. The 2nd & 3rd Respondents urges the court to find that the applicant herein has fallen short of all the underlying principles enumerated inNicholas Kiptoo Korir Arap Salat –vs- Independent Electoral & Boundaries commission(supra).

Analysis and Determination

16. I have considered the application, the supporting affidavit, the grounds of opposition and the submissions filed by the parties as well as the law and authorities relied upon. The singular issue for determination is whether the Applicant is entitled to an extension of time to lodge his appeal.

17. Section 79G of the Civil Procedure Act is the operative law in answering the question whether the prayer to enlarge time to file the appeal is merited. The section 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 the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

18. The first point taken up by the 2nd and 3rd Respondents is that the Application is incompetent because the Applicant ought to have first filed a Memorandum of Appeal and then seek for its admission out of time. The claim is that the plain reading of section 79G is to that effect. Further, the Respondent relied on the interpretation to that section given by the High Court in the cases of Gerald M’Limbine v Joseph Kangangi [2009] eKLRandAsma Ali Mohamed v Fatime Mwinyi Juma.

19. I have carefully considered the cases relied on by the Respondent with respect to interpretation of section 79G of the Civil Procedure Act. However persuasive it is my finding that they were issued by court with concurrent jurisdiction. On my side, I find the decision in the case of Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLRmore persuasive and advancing this court’s mandate under Section 1A, 1B and 3 of the Civil Procedure Act Cap 21. Justice JOEL NGUGI,held therein that;

“I do not take the phrase “an appeal may be admitted out of time” to mandatorily require that a party who is late to file an appeal must first file it and then approach the Court for the filed appeal to be admitted out of time. At best I find such a constrained reading of the statute to be an impermissible raising of a procedural technicality above substance. At worst, that reading of the statute is not in accord with our practice and may be out of place with the “mischief rule” of statutory interpretation in this case”.

20. It appears obvious that the intention of the statute was to provide a mechanism for a party who did not, for good cause, file an appeal on time, to approach the Court to be allowed to file such an appeal. To deny such a party, leave to file the appeal merely because they did not, first, file the appeal which would have been, in the first place, out of time as a way of preserving their right to approach the Court seems a touch too formalistic for our jurisprudence in this day and age. Moreover, the Applicant has annexed the draft memorandum of appeal as “MSF-2”. I also am minded that Article 159(2) (d) of the Constitution enjoins the court to dispense justice without regard to procedural technicalities. On the foregoing this, court concludes that the Application is not incompetently before the Court.

21. The Application will be considered on its substance and gainst the principles and factors the Court of Appeal laid out in the case of Mwangi v Kenya Airways Ltd [2003] KLR, which have been widely accepted by courts when exercising the discretion on 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; and

f. The effect if any on the administration of justice or public interest if any is involved.

22. The 2nd and 3rd Respondents complain that this Application is made in bad faith and as an afterthought since no evidence as to whether the Applicant applied for the order appealed from and the certificate of delay has been adduced. The Applicant on the other hand argues that the delay was occasioned by failure to obtain certified copies of the judgment during the time prescribed for launching an appeal. It was argued that the circumstances were beyond the Applicant’s control.

23. Looking at all the factors in totality, I am unable to agree with the 2nd and 3rd Respondents that this application is an abuse of the Court’s process and has been brought as an afterthought. First, I note that the application was brought merely less than a month after time had run out and that a request for proceedings was made within days of the judgment. I do not find this to be inordinate under the circumstances.

24. Lastly, looking at the Draft Memorandum of Appeal filed, I am unable to say that the intended appeal is in-arguable. Of course, all that the Applicant has to show at this stage is arguability – not high probability of success. At this point, 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 Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict. On perusal of the draft memorandum of the appeal, I believe that the Applicant has discharged this burden.

25. I am also unable to see any substantial adverse effects that the granting of this order will have on the 2nd and 3rd Respondents other than permitting the Applicants to exercise a preciously cherished right of appeal.

26. Accordingly, I grant leave to the applicants to file the appeal out of time. The Memorandum of Appeal be filed and served within 10 days from the date hereof. In default the application shall stand dismissed.

It is so ordered.

Dated, delivered and signed at Mombasa this 11th day of March, 2020

D.O CHEPKWONY

JUDGE