[2022] KEHC 13879 (KLR)

Ngenye & another v Aswani (Miscellaneous Civil Application E361 of 2021) [2022] KEHC 13879 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13879 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E361 of 2021

CW Meoli, J

October 13, 2022

Between

Jackson Mwangi Ngenye

1st Applicant

Kelvin Ngatia

2nd Applicant

and

Martin Aswani

Respondent

Ruling

1. For determination is the motion dated July 20, 2021 by Jackson Mwangi Ngenye and Kelvin Ngatia (hereafter the 1st and 2nd applicant/ the applicants) seeking leave to appeal out of time against the judgment in Nairobi Milimani CMCC No 10699 of 2018 and that the annexed memorandum of appeal be admitted and deemed as to be filed within the prescribed time. The motion is expressed to be brought inter alia under section 3A, 79G & 95 of the Civil Procedure Act (CPA), order 42 rule 6(1), order 50 rule 6 and order 51 rule 1 & 3 of the Civil Procedure Rules(CPR).

2. The grounds on the face of the motion are amplified in the supporting affidavits sworn by the 1st applicant and Diana Omokee, counsel on record for the applicants, and having conduct of the matter and therefore duly authorized. The gist of counsel’s affidavit is that judgment in Nairobi Milimani CMCC No 10699 of 2018 was delivered on June 18, 2021 in favour of Martin Aswani (hereafter the respondent) and that she received instructions from the applicants to lodge an appeal on June 28, 2021. That despite having prepared the memorandum of appeal on June 29, 2021 she inadvertently forgot to issue instructions to have the appeal filed and only realized this when the applicants inquired on the status of the matter. She deposes that her error was unintentional and the omission should not be visited on the applicants by denying them their right of appeal, and that it is in the interest of justice that the orders sought be granted.

3. The 1st applicant swore the second affidavit on his own behalf and on behalf of the 2nd applicant. The gist of his affidavit is that having been informed of the outcome of the judgment the applicants were aggrieved and issued instructions to counsel on June 28, 2021 to appeal the said judgment. That he later made a follow up on the status of the appeal and discovered that the appeal had not been filed and that the time within which to lodge an appeal had since lapsed. He deposes that the applicants are desirous of lodging an appeal which he described as arguable, and raising pertinent points of law therefore, having an overwhelming chance of success. That the delay occasioned herein is not so inordinate as to be inexcusable. Finally, he asserts that the respondent will not suffer any prejudice that cannot be compensated by an award of costs.

4. The respondent opposes the motion by way of grounds of opposition dated September 14, 2021. He takes issue with the motion on grounds that it is unmerited and misconceived; that the applicants have not demonstrated any or sufficient reasons for the delay in filing the appeal; that the intended appeal has no chances of success; that the motion has been brought in bad faith and with the sole aim of denying the respondent the fruits of his judgment and ought to be dismissed with costs.

5. The motion was canvassed by way of written submissions. The applicants’ submissions, hardly addressed the prayer seeking leave to appeal out of time but rather focused on the prayer seeking stay of execution pending appeal.

6. The respondent on his part, anchored his submissions on the provisions of section 79G of the Civil Procedure Act. It was submitted that granting leave to the applicants to appeal out of time will be prejudicial to the respondent who will be denied the fruits of successful litigation. In conclusion counsel contended that “forgetfulness” is not a sufficient cause or good reason to justify delay in filing of an appeal as such the motion ought to be dismissed with costs.

7. The court has considered the rival affidavit material and submissions made in respect of the motion. As observed earlier, the applicants failed to address the court on the substantive issue of leave. Nonetheless, the court will apply itself to the facts deposed in the respective affidavit material of the parties in determining the matter.

8. The power of the court to enlarge time for filing an appeal out of time is expressly donated by section 79G, as well as generally, by section 95 of the Civil Procedure Act. The applicants’ explanation for delay is found in their counsel’s affidavit material and is to the effect that while counsel prepared the memorandum of appeal on time on June 29, 2021, she inadvertently forgot to have the appeal filed and only realized the error when an inquiry was made by the applicants to find out the status of the matter. That the error was unintentional whereas the said omission should not be visited on the applicants by denying them their right of appeal. The respondent dismisses the explanation as inadequate and views the motion as one filed in bad faith and with the sole aim of denying him the fruits of his judgment.

9. 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.”

10. As earlier noted herein the words that “an appeal may be admitted out of time” in section 79G, appears 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. Further the principles governing leave to appeal out of time are settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways [2003] e KLR, the Court of Appeal while considering rule 4 of the CourtofAppeal 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 general the 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.”

11. 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 And 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….”See also Patrick Wanyonyi KhaembavTeachers Service Commission & 2 Others [2019] eKLR.

12. Earlier, the Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:“(T)he underlying principles a court should consider in exercise of such discretion include;1. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5. Whether there will be any prejudice suffered by the respondent if the extension is granted;6. Whether the application has been brought without undue delay.7. ......”See also County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR.

13. There is no dispute that the judgment of the lower court was delivered on June 18, 2021. The instant motion was filed on July 27, 2021. Ideally the appeal ought to have been filed on or before the July 18, 2021 as such the delay in this matter is about nine (9) days and therefore there is merit in the applicants contention that delay in bring the motion was not inordinate. The Court of Appeal in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR while addressing the issue of delay noted:-“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour”…

14. Further as Apaloo, J A (as he then was) famously stated 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....”

15. The explanation given by the applicants’ counsel appears plausible and the delay itself is not inordinate. Moreover, it would be a travesty of justice to deny an innocent party such as the applicants herein the right of appeal on account of the failures and or mistakes of their counsel that do not appear deliberate. The respondent will not suffer prejudice that cannot be compensated through costs if the motion is allowed. Concerning the intended appeal, the respondent contends that it has no chances of success. The court has perused the draft memorandum of appeal. However, based on the language employed in Mutiso v Mwangi (supra) the requirement touching on the viability of the intended appeal, is neither mandatory nor stringently applied in an application of this nature. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR stated that such appeal:“… may not succeed as in law an arguable appeal need not succeed so long as it raises a bona fide issue for determination by the court.”

16. In Vishva’s case, the court emphasized the right of appeal in the following terms:“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…”

17. In the circumstances of this case, the court is persuaded that in order to facilitate the applicant’s undisputed right of appeal, the prayer for leave to appeal out of time ought to be granted. Consequently, the motion is granted and the applicants directed to file the appeal in 14 days. As a last word with regard to the prayer for stay of execution, in line with the provisions of order 42 rule 6 of theCivil ProcedureRules and the dicta in Abubaker Mohamed Al Amin v Firdaus Siwa Somo (2018) eKLR such prayer for stay of execution pending appeal can only be entertained when the actual appeal is filed. The costs of the motion are awarded to the respondent in any event.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 13TH DAY OF OCTOBER 2022C MEOLIJUDGEIn the presence of:For the applicant: Mr Nyabuti h/b for Ms. SaginiFor the respondent: Ms BwireC/A: Carol