[2021] KEHC 2629 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. APPLICATION NO. 58 OF 2017

MWANZIA KANYELE.......................................................................................APPLICANT

-VERSUS-

SBI INTERNATIONAL HOLDING AG (KENYA).......................................RESPONDENT

RULING

1. The applicant herein took out the Notice of Motion dated 30thJanuary, 2017 and sought for the substantive order of leave to lodge an appeal out of time against the ruling delivered on 8thJuly, 2016 in Milimani CMCC No. 174 of 2012; and a further order that the draft memorandum of appeal annexed thereto be deemed as duly filed and served.

2. The Motion is supported by the grounds set out on its body andthe facts stated in the affidavit of advocate Donald W.Muyundo.

3. The respondent resisted the Motion by putting in a replyingaffidavit sworn by its Operations Manager, Shaul Cohen on 4th

April, 2017.

4. At the interparties hearing of the Motion, the parties filed andexchanged written submissions.

5. I have considered the grounds laid out on the body of theMotion; the facts deponed in the affidavits supporting and opposing the Motion; and the rival submissions and authorities cited in support thereof.

6. The gist of the matter as derived from a copy of the plaintannexed to the replying affidavit of Shaul Cohen is that the applicant instituted a suit against the respondent before the trial court and sought for general and special damages for injuries arising out of a claim for negligence and/or breach of statutory and/or contractual duty of care.

7. The parties aver that subsequently, the respondent herein filedthe application dated 25thFebruary, 2016 and sought for an order of dismissal of the applicant’s suit on the basis of being statute barred by dint of the provisions of Section 90 of the Employment Act, a copy of which is also annexed to the replying affidavit.

8. According to the parties, the trial court vide the ruling deliveredon 8thJuly, 2016 allowed the application and dismissed the suit. However, none of the parties annexed a copy of the impugned ruling for this court’s reference.

9. Be that as it may, the impugned ruling has prompted theinstant Motion.

10. It is clear that the substantive order sought in the Motion is thatfor leave to file an appeal out of time.

11. Section 79G of the Civil Procedure Act sets the timelines forlodging an appeal against the decision of a subordinate court at 30 days from the date of the decree or the order being appealed against. The provision goes on to express that an appeal may be admitted out of time where sufficient cause has been shown.

12. Furthermore, under the provisions of Section 95 of the CivilProcedure Act and Order 50, Rule 5 of the Civil Procedure Rules, the courts have power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

13. The guiding principles to be satisfied for an application seekingfor leave of the court to file an appeal out of time/for the extension of time to succeed were the laid out in the case ofThuita Mwangi v Kenya Airways Limited [2003] eKLRcited in the applicant’s submissions, and were reaffirmed in the case ofGrowth Africa (K) Limited & another v Charles Muange Milu [2019] eKLR.

14. On the first condition touching on the length of delay, therespondent is of the view that there has been an unreasonable delay in bringing the Motion, whereas the applicant submits that he has taken active steps towards bringing the Motion.

15. Going by the averments made by the parties, it is apparent thatthe impugned ruling was delivered on 8thJuly, 2016 whereas the instant Motion was filed about seven (7) months later on 9thFebruary, 2017. In my view, while there has evidently been a delay, I do not find the same to be inordinate or unreasonable in the circumstances.

16. Concerning the reason(s) for the delay, advocate Donald W.Muyundo explains the same by stating in his affidavit that when the application dated 25thFebruary, 2016 was to be dispensed with through written submissions and that when the matter came up on 13thJune, 2016 to confirm filing of submissions and to take a ruling date, a pupil at the deponent’s firm was in attendance.

17. The deponent states that the pupil mis-diarized the ruling dateas being 8thSeptember, 2016 instead of 8thJuly, 2016 and that it was only later that the deponent discovered that the ruling had already been delivered.

18. The deponent further explains that it was not until 16thJanuary, 2017 that the applicant instructed him to lodge an appeal against the impugned decision.

19. The applicant also submits that the delay in filing the appealand the instant Motion was the result of inadvertence on the part of his advocate and that he should not be made to suffer for the same.

20. In reply, Shaul Cohen states that on the date on which theruling date was issued, both the respective counsels for the applicant and the respondent were in attendance and hence the applicant’s advocate was aware of the ruling date.

21. It is the contention of the respondent that the delay has notbeen adequately explained.

22. Upon considering the rival positions taken herein above, it isapparent that the delay was largely occasioned by the inadvertence of the applicant’s advocate whether directly or through his agent/employee. In such a case, the legal position is that the mistake of an advocate should not be visited upon the client. Consequently, I find the explanation for the delay to be reasonable in the circumstances.

23. On the principle to do with whether or not an arguable appealexists, the applicant is of the view that an arguable appeal

exists. The respondent did not discuss this issue.

24. From my study of the grounds of appeal put forward in the draftmemorandum of appeal annexed to the Motion, I observed that the appeal lies against the dismissal order made by the trial court, with the applicant essentially arguing that the trial court did not exercise its discretion judicially and that it erred in finding that the suit was time barred. Taking these factors into account, I am satisfied that the applicant has established arguable points of law and fact in his draft memorandum of appeal.

25. Under the final principle on prejudice, the applicant states andcontends that he stands to suffer a grave injustice if he is denied the opportunity to challenge the decision of the trial court on appeal, while contending that the respondent does not stand to be prejudiced in any manner whatsoever.

26. On its part, the respondent submits that it stands to beprejudiced but did not elaborate any further on this argument.

27. Upon my perusal of the record, I note that it is not in disputethat the applicant’s suit was dismissed at the preliminary stage and without the parties being heard on merit. The interest of justice therefore enjoins me to grant the applicant an opportunity to challenge the subordinate court’s dismissal order on appeal, being supported by the case ofBlue Nile E. A. Ltd v Lydia Gode Yusuf & another [2018] eKLRwhere the court held thus:

“The right to be heard is a Constitutional right provided for under Article 48 of the Constitution of Kenya, and in all circumstances it will be in the interest of all parties to hear a matter on merit. The only consideration the Court ought to take into account is to balance the rights of both parties. I am therefore inclined to grant the Applicants an opportunity to file their Appeal out of time so that the same can be heard on merit.”

28. Having taken the above into account, I am satisfied the motiondated 30thJanuary 2017 has merit. The same is allowed thusgiving rise to issuance of the following orders:

i. The applicant is granted leave to file an appeal out oftime within 14 days from today.

ii.Costs of the application to abide the outcome of theappeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021.

.........................

J. K. SERGON

JUDGE

In the presence of:

......................................... for the Applicant

........................................for the Respondent