[2022] KEHC 16530 (KLR)

Mwangi v Kungu & another (Miscellaneous Application E024 of 2022) [2022] KEHC 16530 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16530 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application E024 of 2022

RB Ngetich, J

December 15, 2022

Between

David Njoroge Mwangi

Appellant

and

Mitchel Wanjitu Kungu

1st Respondent

Jacinta Wangari

2nd Respondent

Ruling

1. This is a ruling on notice of motion dated February 7, 2022 seeking leave to appeal out of time against the ruling of the honourable CK Kisiangani (SRM) delivered on August 26, 2021 in Ruiru SPMCC No 341 of 2019.

2. The grounds of the application are that the applicant is aggrieved by the said judgment and the thirty (30) days’ period allowed by law to appeal has lapsed; the respondents will suffer no prejudice if the application is allowed and the delay is not so inordinate as to be inexcusable.

3. The application is supported by the annexed affidavit of Victor Odhiambo Ayieko counsel for the appellant sworn on January 26, 2022. He averred that being aggrieved by the decision delivered by the subordinate court on August 26, 2021, he was instructed to appeal against the decision; that he prepared a memorandum of appeal and instructed his clerk to have the same filed but learned from the registry that the memorandum is yet to be filed.

4. He further averred that the time for filing the appeal has since lapsed but the appeal raises triable issues and the mistake made in filing the appeal should not be revisited on the client. He contends the appeal will be rendered nugatory and the applicant will suffer prejudice if the orders are not granted.

5. In his supplementary affidavit sworn on June 17, 2022, counsel asserts that the facts as deposed are within his knowledge and being in conduct of the matter, he made no error in swearing the affidavit on behalf of the client and the memorandum of appeal was promptly prepared on September 16, 2022 and an invoice generated. He further stated that the failure to pay for the invoice was occasioned by change of secretaries in counsel’s office as the Secretary was proceeding on maternity leave.

6. In response, the respondent filed replying affidavit dated May 20, 2022 sworn by Geoffrey Muriungi Kiugu counsel for the respondent. He averred that the application is incompetent, misconceived, bad in law and devoid of merit; that the case belongs to a litigant and not his advocate and the applicant has not demonstrated the necessary steps taken to ensure the appeal was filed within time. He further stated that counsel for the applicant has not attached an M-pesa transaction to prove the memorandum of appeal was paid for and counsel has deliberately failed to attach a copy of the email trail and copy of the invoice that the applicant was indolent in failing to file the memorandum of appeal on time and no justifiable reason or explanation has been given.

7. Counsel further disposes that the application for leave to appeal out of time has been filed after inordinate delay and no sufficient reasons to grant the orders has been advanced and urged this court to dismiss the motion with costs.

8. By the directions of this court on June 16, 2022, the motion was canvassed by way of written submissions.

Applicant’s Submissions 9. Counsel for the appellant filed submission on July 18, 2022 and submitted by provisions of sections 79G and 95 of the Civil Procedure Act section 79G this court is clothed with the jurisdiction to grant the prayers for leave to file appeal out of time. Counsel submitted that the delay in filing the appeal was not deliberate. He submitted that counsel has owned to his mistake given the reasons for the delay and pleaded with the court not to visit the penalty on the innocent applicant.

10. Counsel further urged the court to be guided by article 159(2) (d) of the Constitutionof Kenya2010 and determine the application without technicalities as the respondent will suffer no prejudice and if any prejudice is to be suffered, it will be compensated by an award of damages. He urged this court to allow the application.

Respondents’ Submissions 11. Counsel for the respondents filed submissions on August 5, 2022 and submitted that the ruling the applicant seeks to challenge was delivered on August 26, 2021 but the 30 days’ window period within which to appeal lapsed on September 24, 2021; that the application was filed on February 7, 2022 about six (6) months later and the delay is inordinate; and the applicant’s counsel has not offered sufficient reasons for failing to act within time to protect his client’s interest.

12. Counsel further submitted that the intended appeal lacks merit and is not arguable and has no chance of success; that the honorable Magistrate exercised her unfettered discretion within the law in dismissing the suit and submitted that article 159 of the Constitution enshrines that justice delayed is justice denied, while article 50 (2) of the Constitution envisages the right to have trial begin and continued without unreasonable delay.

13. In conclusion, counsel submitted that the applicant has not explained to the court the reasons for the delay and allowing the application will amount to aiding an indolent party which will greatly prejudice the respondent and urged the court to dismiss the motion with costs to the respondents.

Analysis And Determination 14. I have considered grounds of application, averments in affidavits in support and opposing the motion as well as submissions filed. The issue for determination is whether the application meets the threshold for extending time to appeal.

15. In the case of Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR the Supreme Court stated as follows: -“held that extension of time is not a right of the party, a party who seeks extension of time has the burden of laying a basis to the satisfaction of the court. Of paramount importance, the reason for the delay must be explained to the satisfaction of the court. Further the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted.”

16. In the instant case, the ruling sought to be appealed was delivered on August 26, 2021. The ruling dismissed the application dated June 3, 2021 seeking to set aside the orders dismissing the plaintiff’s suit for want of prosecution. The current motion seeking extension of time was filed on February 7, 2022 this is after a delay of about five (5) months.

17. Counsel for the applicant in his affidavit in support of the application and the supplementary affidavit has explained the delay as having been occasioned by an oversight in his office. He stated that he prepared the memorandum of appeal timely on September 16, 2021 and caused the same to be filed; an invoice was generated but unfortunately the same was not paid for due absence of his secretary in his office. Counsel urged the court not to revisit his omissions on his clients.

18. I have looked at the invoice and note it was generated on September 30, 2021; the memorandum of appeal is dated September 16, 2021. The filing of the memorandum of appeal cannot therefore be said to be timely. It is evident from the attached invoice that counsel attempted to file the memorandum of appeal outside the 30 days window period for filing of the appeal without seeking leave to appeal.

19. From the ruling of the trial court, the suit was dismissed on February 4, 2021 for want of prosecution, the applicant filed an application to reinstate the suit on June 3, 2021 a period of four (4) months from the dismissal. The trial court in its ruling opined the applicant did not adduce sufficient reasons to warrant the court exercise its discretion and set aside its earlier orders.

20. Counsel for the respondents contends the applicant has not adduced sufficient reasons why he failed to follow up on the matter. In the case of Habo agencies Limited v Wilfred Odhiambo MusingoCivil Appeal application No 124 of 2004 the court stated as follows: -‘’Courts have held that it is not sufficient for a party in litigation to simply blame advocates on record. Courts have emphasized that parties have a responsibility to show interest in and follow up on their cases even when they are represented by counsel.

21. I take note of the conduct of the applicant in the subordinate court and there is no doubt that the applicant has been indolent in his own case. The current application was filed after the trial court failed to reinstate the suit. The reasons therefore cited by counsel for the applicant in my considered view fails to meet the threshold to offer a satisfactory explanation for the five (5) months delay.

22. From the foregoing, I find the five (5) months’ delay is inordinate and application dated February 7, 2022 is not merited.

Final Orders:- 1. Application dated February 7, 2022 is hereby dismissed

2. Costs to the respondents.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF DECEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantsMs. Njeri holding brief for Mr. Kiugu for respondent