[2023] KEHC 26284 (KLR)

Ng’ang’a & another v Kainuthia (Miscellaneous Civil Application E055 of 2023) [2023] KEHC 26284 (KLR) (Civ) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26284 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E055 of 2023

CW Meoli, J

December 5, 2023

Between

Hellen Njeri Ng’ang’a

1st Applicant

Charles Mworia Mbui

2nd Applicant

and

William Mutambari Kainuthia

Respondent

Ruling

1. For determination is the motion dated 14. 01. 2023 filed by Hellen Njeri Ng’ang’a and Charles Mworia Mbui (hereafter the 1st & 2nd Applicant/Applicants). Seeking inter alia that the order issued by this court on 24. 06. 2022 in Nairobi HC Misc. Civil Application No. E307 of 2021 granting leave to appeal the judgment in Nairobi CMCC No. 1060 of 2017 out of time, be deemed to extend/ apply to Nairobi CMCC No. 1059 of 2017 as the two suits were consolidated before the lower court; that Nairobi HC Civil Appeal No. E475 of 2022 be deemed to have been duly filed and the order of stay of execution pending hearing and determination of the appeal issued by Sergon, J. on 24. 11. 2022 be deemed to have been duly given in both instances.

2. The motion is expressed to be brought under Section 1A, 1B, 3A & 95 of the Civil Procedure Act (CPA) and Order 50 Rule 6 of the Civil Procedure Rules (CPR) inter alia. The grounds on the face of the motion are amplified in the supporting affidavit sworn by Colleta Wambua, counsel on record for the Applicants. The gist of her affidavit is that on 29. 05. 2020 judgments in Nairobi Milimani CMCC No. 1059 & 1060 of 2017 (hereafter the lower court suits), which had been consolidated, were delivered in the absence of both parties. That the Applicants being aggrieved with the said judgments instructed their erstwhile advocate to seek leave to file both appeals out of time.

3. She explains that the erstwhile advocate who had conduct of the matters at the time, proceeded to file Nairobi HC Misc. Civil Application No. E307 of 2021 seeking leave to appeal the judgment in Nairobi Milimani CMCC No. 1060 of 2017 out of time but erroneously failed to indicate that the orders sought were to equally apply to the judgment delivered in Nairobi Milimani CMCC No. 1059 of 2017.

4. That subsequent to this court’s ruling delivered on 24. 06. 2022 in respect of the motion filed in Nairobi HC Misc. Civil Application No. E307 of 2021, she took conduct of the matter and had no reason to suspect that the leave motion filed by erstwhile counsel, did not expressly seek that orders should apply to both lower court suits. As a consequence of which she proceeded to file Nairobi HC Civil Appeal No. E475 & E476 of 2022 (being appeals against the two decisions in lower court suits).

5. She further swore that it was only after filing both appeals and complying with conditions for stay of execution issued by Sergon, J. in respect of the foregoing appeals that she realized that the order issued by this court on 24. 06. 2022 only applied to Nairobi Milimani CMCC No. 1060 of 2017. That it is in the interest of justice, that the mistake of erstwhile counsel is not visited upon the Applicants and that the orders of this court issued on 24. 06. 2022 ought to be deemed to apply to Nairobi Milimani CMCC No. 1059 of 2017 as well and hence the respective appeal being Nairobi HC Civil Appeal No. E475 of 2022 being equally deemed to have been duly filed and the orders of stay by Sergon, J. to correspondingly apply.

6. William Mutambari Kainuthia (hereafter the Respondent) opposes the motion through the affidavit deposed by his counsel, Kisiangani Eddah,. She asserts that the Applicants are dishonest persons. She views the motion as dilatory and intended to defeat the Respondent’s cause through endless, frivolous and piecemeal litigation, and therefore a waste of the court’s judicial time. She attacks the motion as factually misleading because the lower court suits were never consolidated and the trial court delivered separate judgments. Therefore, the ruling of this court of 24. 06. 2022 could not have applied to Nairobi Milimani CMCC No. 1059 of 2017

7. She deposes further that the Respondent had proceeded to file a declaratory suit in respect of the judgment in Nairobi Milimani CMCC No. 1059 of 2017 which was vigorously defended, leading to a ruling delivered on 09. 09. 2022, that prompted the instant motion. Counsel asserts therefore that the Applicants have been indolent and the reasons advanced for delay in filing the appeal in time are mischievous, dishonest and dilatory. In conclusion, she deposes that the motion is bad in law, has been made in bad faith, is inept, lacks merit and thus ought to be dismissed with costs.

8. The motion was canvassed by way of oral arguments. Counsel for the Applicants relied on the affidavit in support of the motion as part of his submissions contending that failure to appeal within time in respect of Nairobi Milimani CMCC No. 1059 of 2017 was a mistake of erstwhile counsel that ought not to be visited upon the Applicants and can be remedied by an award on costs. The decision in Phillip Kiptoo Chemwolo & Anor. v Augustine Kubede [1986] eKLR was cited in that regard. It was further submitted that delay has been reasonably explained and that the Respondent will not be prejudiced as the Applicants are willing to abide by any conditions imposed by the court, having already furnished a bank guarantee for the decretal sum concerning the respective appeals. That consolidation of the appeals in respect of the two lower court suits would be most prudent to avoid the embarrassment of justice through conflicting judgments.

9. On the part of the Respondent, counsel equally relied on her response to the motion as part of her submissions. She cited the decision in Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR to reiterate the position that the lower court suits were never consolidated. Further, while calling to aid the decision in Josephine Wambui Mwangi v Michael Mukundi Ngugi [2021] eKLR, counsel argued that the affidavit in support of the motion is bereft of truth as the ruling of this court delivered on 24. 06. 2022 was specific to Nairobi Milimani CMCC No. 1060 of 2017. With the consequence that the appeal in respect of Nairobi Milimani CMCC No. 1059 of 2017 was without the requisite leave and is incompetent. In conclusion she submitted that a declaratory suit having been filed on account of Nairobi Milimani CMCC No. 1059 of 2017, the instant motion was filed to defeat execution. Therefore, it is without merit and ought to be dismissed with costs.

10. In rejoinder, counsel for the Applicants reiterated the dicta in Phillip Kiptoo Chemwolo (supra) to argue that the lower court in its judgment referred to consolidation of the lower court suits and hence it was an oversight that Applicants failed to include Milimani CMCC No. 1059 of 2017 in their motion in Nairobi HCC Misc. Civil Application No. E307 of 2021. Further pointing out that the bank guarantee furnished by the Applicants covers the entire decretal sum and it would be a travesty of justice if the court were to decline to exercise its discretion to regularize that which is defective. He urged the court to allow the motion and deem Nairobi HC Civil Appeal No. E475 of 2022 as properly filed.

11. The Court has considered the rival affidavit material and oral arguments by counsel in respect of the motion. It is not disputed that on 24. 06. 2022, this court delivered a ruling in Nairobi HC Misc. Civil Application No. E307 of 2021 allowing the motion dated 30. 06. 2021 that was seeking that the Applicants therein be granted leave to file an appeal out of time from the judgment in Nairobi Milimani CMCC No. 1060 of 2017. As a result of the foregoing ruling it appears the Applicants proceeded to file two appeals in respect of both lower court suits named in the respective affidavits.

12. It seems that the Applicants through the instant motion seek to regularize Nairobi HC Civil Appeal No. E475 of 2022. Explaining that the Applicants’ present counsel who took over the matter from erstwhile counsel was under the reasonable apprehension that the orders issued in Nairobi HC Misc. Civil Application No. E307 of 2021 applied to both Nairobi Milimani CMCC No. 1059 & 1060 of 2021, and attributing delay in filing an appeal in respect of the CMCC 1059 of 2017 to mistake of counsel that ought not to be visited on the Applicants. The Respondents inveigh the Applicants as dishonest and dilatory litigants who are guilty of abusing the process of the court.

13. Section 79G of the Civil Procedure Act provides that:“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.”

14. The key considerations therein being that “an appeal may be admitted out of time” and a successful applicant must satisfy that court that he had “good and sufficient cause” for not filing the appeal in time. As concerns the latter, the law is settled. In Thuita Mwangi v Kenya Airways [2003] eKLR, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which was in pari materia with Section 79G of the Civil Procedure Act, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that the general matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent of the application is granted.”

15. While the discretion of the court is unfettered, a successful applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion in his favor. On the question of the exercise of judicial discretion, the Supreme Court observed in the case of Telkom Kenya Limited v John Ochanda & 996 Others [2015] eKLR that:“In instances where there is delay in filing the notice of appeal, this Court has inherent jurisdiction to admit such appeal, provided sufficient explanation is proffered for the cause of delay. The design and objective of the Supreme Court Rules is to ensure accessibility, fairness and efficiency in relation to this Court. Parties should comply with the procedure, rather than look to the Court’s discretion in curing the pleadings before it. This Court’s position is that the circumstances of each case are to be evaluated, as a basis for arriving at a decision to intervene, in instances where full compliance with procedure has not taken place….It is this Court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties. However, the Court will consider the relevant circumstances surrounding a particular case and will conscientiously ascertain the best course. It is to be borne in mind that rules of procedure are not irrelevant but are the handmaiden of justice that facilitate the right of access to justice in the terms of Article 48 of the Constitution….”

16. The words “an appeal may be admitted out of time” in Section 79G, appear to admit both retrospective and prospective applications. So that leave under the section may be sought before or after a memorandum of appeal is filed. The Applicants have acknowledged through counsel that in light of their reasonable but mistaken belief that erstwhile counsel equally sought leave to appeal Nairobi CMCC No. 1059 of 2017 and pursuant to the ruling delivered in Nairobi HC Misc. Civil Application No. E307 of 2021 on 24. 06. 2022, they proceeded to file Nairobi HC Civil Appeal Nos. E475 of 2022 and 476 of 2022. Copies of judgments of the lower court in CMCC No.1059 of 2017 and CMCC No. 1060 of 2017 attached to the Applicant’s affidavit indicate that the two causes had been consolidated after the close of pleadings but it appears that separate judgments issued in each of them. This matter while likely to cause confusion should not have escaped the notice of an attentive counsel at the point of preparing the application for leave.

17. Clearly, counsel was inattentive and the Applicants have explained the mistaken apprehension leading to delay in filing of the instant motion to regularize the position in respect of Nairobi HC Civil Appeal No. E475 of 2022. The Applicants’ assertions are all the more believable because the Applicants proceeded to file two appeals and to provide security in respect of both appeals, the latter which is not disputed by the Respondent, and serves to minimize the risk of undue prejudice to the Respondent. An award of costs and further directions on the expedition of the appeals will also mitigate against undue prejudice against the Respondent. The Court has noted that directions have already been given in respect of the two appeals and once the subject appeal is regularized, both appeals can proceed expeditiously.

18. To my mind, this is a typical case of blundering by the Applicants’ erstwhile counsel as contemplated by Apaloo, J.A. (as he then was) in Phillip Kiptoo Chemwolo and & Anor. v Augustine Kubede (1986) eKLR:-“I think a distinguished equity judge has said:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merit.”I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of parties and not for the purpose of imposing discipline....”

19. The blunders of counsel ought not to result in the Applicants being peremptorily driven from the seat of justice. In the case of Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR the Court of Appeal had this to say:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu v IEBC & 2 Others (supra); Mbaki & Others v Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another v Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:(i)The right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)The right to be heard is a valued right; and(iii)That the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice…”

20. In the interest of justice, the court will allow the motion dated 14. 01. 2023 in terms of prayers (2) and (3) but award costs to the Respondent in any event. In addition, the court directs the parties to expeditiously comply with directions earlier given by the court with regard to the filing of submissions in the two appeals.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5THDAY OF DECEMBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicant: N/AFor the Respondent: Mr. WachiraC/A: Emily