[2023] KEHC 24666 (KLR)

Nyaboga v Chiemeke (Suing as the legal representative of Augustin Ngozi Ngwu) (Civil Application 102 of 2023) [2023] KEHC 24666 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24666 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Application 102 of 2023

JRA Wananda, J

November 3, 2023

Between

David Nyaboga

Applicant

and

Rosemary Adaeze Chiemeke (suing as the legal representative of Augustin Ngozi Ngwu)

Respondent

Ruling

1. The Application before Court is the Notice of Motion dated 12/04/2023 and filed on 17/04/2023. The same seeks the following orders:i.Pending the hearing and determination of this Application there be a stay of proceedings in Eldoret CMCC No. 671 of 2015. ii.Leave do issue to the Applicant to pursue an Appeal outside the requisite time from the decision of the Honourable L. Kassan, Chief Magistrate made on 28/2/2022 made in Eldoret CMCC No. 671 of 2015iii.Costs of the Application be costs in the Appeal.

2. The Application is filed through Messrs Anassi Momanyi & Co. Advocates and is stated to be brought under Section 79G of the Civil Procedure Act and Order 50 of the Civil Procedure Rules. The grounds of the Application are as set out on the face thereon and the same is supported by the respective Affidavits sworn by the Appellant’s Counsel, Elijah Momanyi Mogona and by the Appellant.

3. In his Affidavit, Counsel deponed that the Application dated 5/07/2028 filed in Eldoret CMCC No. 671 of 2015 was heard in early 2021 and a Ruling delivered on 28/02/2022 without any notice, the Applicant desires to appeal against the decision, the time within which to appeal has lapsed, leave to appeal is required and that there is no prejudice that the Respondent stands to suffer if leave is granted.

4. On his part, the Applicant echoed the same matters deponed by his Counsel that he is the 2nd Defendant in Eldoret CMCC No. 674 of 2015, on 5/07/2018 he filed an Application challenging leave to file the suit out of time, the Application was heard in early 2021 and dismissed on 28/02/2022, the decision was made without notice to him or his Advocate, he desires to pursue an Appeal, the time within which to appeal has lapsed and that granting him leave will meet the ends of justice.

Response to the Application 5. The Respondent opposed the Application vide his Replying Affidavit filed on 19/05/2023 through Messrs Akenga Kimutai & Co. Advocates. He deponed that the Applicant was fully aware of the Ruling dated 28/02/2022 and that he has on several occasions missed Court attendances just to delay and frustrate the Respondent, the Applicant has not given any good or sufficient cause for the delay in filing the Appeal within the time provided under Section 79G of the Civil Procedure Act, the Application is an afterthought, the Respondent shall suffer great prejudice if an extension is granted, the Applicant should not hide behind Article 159(2)(d) of the Constitution, the Respondent is at a loss as to which decision the Applicant intends to appeal against, at one point in the Application it is stated to be the decision made on 28/02/2022 while in the draft Memorandum it is 28/02/2023 and that the Application is meant to delay the hearing of the main suit which was filed way back in 2015.

6. He deponed further that if the Application whose Ruling the Applicant intends to appeal against is the one dated 5/07/2018 then the parties participated and the Ruling delivered virtually on 28/02/2022 in the presence of both parties, it cannot be said that the Applicant was not aware of the Ruling since even after its delivery, he has been participating in the matter as can be exhibited from the Mention and Hearing Notices served on the Applicant’s Advocates, the Applicant has not informed the Court when he became aware of the Ruling, from February 2022 is more than 1 year ago, the Applicant has been indolent, on 23/11/2022 for instance, the Applicant’s Advocate, Mr. Momanyi was present in Court when the matter was mentioned to fix a hearing date and by fixing a hearing date for the main suit the Applicant’s Advocate cannot feign ignorance that he was not aware of what had transpired to his Application and that there is inordinate delay which has not been explained. He added that the chances of the Appeal succeeding are minimal as the same is not legally grounded, the Ruling that the Application seeks to appeal against only referred to the Court’s earlier decision of 18/03/2015 which the Applicant ought to have appealed against but failed to do.

Hearing of the Application 7. Pursuant to the directions given, the Application was canvassed by way of written submissions. The Appellant filed her Submissions on 9/07/2023 while the Respondent filed his on 5/07/2023.

Appellant’s Submissions 8. Counsel for the Applicant submitted that the suit was filed out of time the cause of action having arisen in 2012, the Respondent sought and obtained grant of letters of administration on 19/02/2013 to enable her pursue a suit on behalf of the estate of the deceased, the only relationship between the Respondent and the deceased is that both were members of the same church and no more, the Respondent sought leave to file the suit of time and the Application was allowed ex parte, the Applicant entered Appearance and filed a defence in which the issue of the limitation period under the Limitation of Actions Act was raised, thereafter the Applicant sought the striking out of the suit for being time-barred and on the basis that the Respondent had no capacity to agitate the claim since she was not a dependent of the deceased, the Application dated 5/07/2018 was heard and the Ruling delivered on 28/02/2022, the Applicant was not notified of the Ruling and learnt of the same on 6/02/2023, this was about a year later, the subordinate Court erroneously held that once leave to file a suit out of time is granted the same cannot be challenged in the suit and that one can only challenge it on appeal, it is the said decision against which the Applicant seeks to appeal, the time to file the appeal has already lapsed and there is need to extend the time.

9. On whether the intended Appeal is arguable, Counsel deponed that the issue for determination is whether grant of leave to file a suit out of time may be challenged at the hearing of the suit, leave to file suit out of time is open to challenge once the suit is filed and one does not need to file an Appeal to challenge it. He cited the case of Ngari & Another v Odero and also Jane Aoko Owino vs Blue Shield Insurance Co. Ltd and added that it was therefore erroneous for the subordinate Court to hold that it was being asked to sit on appeal. He also cited the cases of Divecon Ltd v Samani 1995-1998] 1 EA 48, Mary Wambui Kabugu v Kenya Bus Service Limited (1997) eKLR and Bernard M. Mbithi v Mombasa Municipal Council & Another (1993) eKLR.

10. In conclusion, Counsel submitted that there is no prejudice that the Respondent stands to suffer if the Application is allowed, the Applicant has a right to pursue an appeal, the Respondent will be allowed to challenge the Appeal once filed, the Applicant ought not to be condemned on account of failure of the Court and the Respondent to notify him of the Ruling. He placed reliance on the cases of Stecol Corporation Ltd v Susan Awuor Mudemb (2021) eKLR, Joash Musikhu Vuranze v Wanjro Mwangi & Another (2016) eKLR, Edith Gichungu Koine v Stephen Njogi Thothi (2014) eKLR and Kamlesh Mansukhlal Damji Pattni v Director of Public Prosecutions & 3 Others (2015) eKLR.

Respondent’s Submissions 11. Counsel for the Respondent reiterated the matters set out in the Replying Affidavit and submitted that while the impugned Ruling dismissing the Applicant’s Application dated 5/07/2018 was delivered on 28/2/2022, the present Application was lodged on 17/04/2023, the Applicant has neither in the Application nor in the Supporting Affidavit indicated the time when he learnt of the Ruling, good legal practice demands that Counsel follow upon the matters that they take up in Court or are retained to handle, the Applicant’s Counsel was under a duty to follow-up on his Application, the Applicant has not indicated to the Court the measures he took to follow up on the Ruling, if the Applicant was serious, he would have written letters to Court to enquire as to whether the Ruling had been delivered, he would also have a least perused the Court file to check if the Ruling had been delivered, he could not have waited for a year, no proper reason has been given, the Applicant was indolent, “equity aids the vigilant and not the indolent”, the Applicant has participated in fixing a hearing date for the main suit, he could not so participate if he was not aware of the fate of the Application, Applicant’s claim that he only recently learnt of the Ruling is a mere lie and fabrication. He cited Section 79G of the Civil Procedure Act and the case of Nicholas Kiptoo arap Korir Salat vs The Independent Electoral And Boundaries Commission & 7 Others (2014) eKLR and added that there has been inordinate delay in filing the Application.

12. Counsel further submitted that the Respondent shall be greatly prejudiced if the Application is allowed, the suit was lodged in 6/03/2015, the trial is yet to begin, a period of 8 years has lapsed, Article 50(2) of the Constitution provides for the expeditious disposal of suits as one of the tenets of fair hearing and the same is reiterated in Article 159(2)(b).

Analysis and Determination 13. Upon examination of the record and the pleadings filed, including the Affidavits and Submissions, I find that the issues that arise for determination to be as follows:i.Whether leave should be granted to file an Appeal out of time.ii.Whether stay of proceedings of the suit before the Magistrates Court should be ordered.

14. I now proceed to analyze and answer the said Issues

Whether leave should be granted to file an Appeal out of time 15. Section 79G of the Civil Procedure Act 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.”

16. On the principles that should guide the Court in Applications for leave to appeal out of time, the Court of Appeal in the case of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR stated as follows:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”

17. I may also add that the decision whether or not to grant leave to appeal out of time is an exercise of discretion and must be exercised judiciously just like any other exercise of discretion.

18. Regarding the length of delay, it is evident from the Pleadings on record that the impugned Ruling was delivered on 28/02/2022. The 30 days period for filing an Appeal therefore lapsed on or about 28/03/2022. The instant Application was then filed on 17/04/2023. The period of delay as computed from the date of lapse of time is therefore about 1 year and 1 month. The Applicant and his Counsel allege that they only learnt of the delivery of the Ruling on 6/02/2023. They however do not disclose how and in what manner they learnt of the Ruling. More importantly, they have not disclosed to the Court what steps, if any, they put in place to follow-up as soon as the hearing of the Application was concluded and the same set for delivery of the Ruling. How did the Respondent become aware of the Ruling and the Applicant did not? I shudder to imagine that for more than one whole year after the Application was heard, the Applicant and his Advocates never bothered to find out about the fate of the Ruling pending on their Application. Regrettably, there has been no explanation whatsoever on this aspect.

19. The Respondent has produced a Mention Notice served upon the Applicant’s Advocates on 15/11/2022 inviting them for fixing of a hearing date for the suit. This should have served as a sufficient cue and ought to have alerted the Applicant’s Counsel that the Court had cleared the way for the suit to proceed to trial and which therefore meant that the Court had already delivered its Ruling. Under these circumstances, I have to agree with the Respondent’s Counsel that the Applicant and/or his Counsel have displayed indolence and that “equity aids the vigilant, not the indolent”.

20. I am persuaded to believe that all along the Applicant and/or his Counsel were aware of the Ruling and that the filing of this Application is an afterthought meant to delay the suit. This the Court cannot countenance.

21. Regarding extension of time, the Supreme Court, while handling an Application for extension of time in Civil Application No. 3 of 2016 - County Executive of Kisumu –vs- County Government of Kisumu & 7 Others held as follows: -“(23)It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court. Further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The court delineated the following as: -“the underlying principles that a court should consider in exercise of such discretion:1)Extension of time is not a right of a 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 on 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.

22. I appreciate that in holding as it did, the Supreme Court was dealing with Rules 32 and 53 of the Supreme Court Rules which are not applicable in the instant matter whose basis is Section 79G of the Civil Procedure Rules, I however trust that the holding nevertheless lays down the general principles to be applied in Applications for extension of time no matter the statutory basis.

23. Applying the above principles to the facts of this case, I find that the Applicant has failed to tender sufficient explanation as to why there was delay in filing the Appeal within time. I therefore decline to grant the Applicant leave to appeal out of time.

24. I also take cognisance of the fact that the suit before the Magistrates Court was filed 8 years ago in the year 2015 and to date the same is still pending in Court. The balance of convenience therefore tilts towards allowing and facilitating the hearing and determination of the suit rather than delaying it further. I therefore also agree with Counsel for the Respondent that allowing the present Application will fly in the face of the provisions of Article 50(2) and 159(2)(b) of the Constitution which require the expeditious disposal of suits as one of the tenets of fair hearing.

25. The other aspect of the Application that I find interesting is that the Applicant has himself produced and relied on various authorities confirming the position that the only recourse available for challenging an ex parte grant of leave to file a suit out of time is by raising it as one of the issues to be canvassed at the trial for determination in the final Judgment of the Court. This means that the challenge then becomes a matter of evidence to be determined on the basis of witness’ testimony given during the trial. The same cannot therefore be advanced by filing an interlocutory Application as a Preliminary matter before the trial. For instance, in his own authorities, Counsel has cited the case of Mary Wambui Kabugu v Kenya Bus Services [1997] eKLR in which the Court of Appeal stated as follows:“In a situation such as I have outlined the defendant only becomes aware of the order extending time when he is served with the summons, plaint and the order extending time. There is no provision in the Act itself to enable the defendant to have the order extending time set aside. In my humble view the only time when such a defendant can challenge the order granting extension of time is at the time of the trial, either on facts brought out at the trial, or by way of arguments at the trial if circumstances and facts allow such arguments at the trial, that is to say if there is no dispute as to facts.”

26. Counsel for the Applicant cited the additional cases of Ngari & Another v Odero, Jane Aoko Owino vs Blue Shield Insurance Co. Ltd, Divecon Ltd v Samani 1995-1998] 1 EA 48 and Bernard M. Mbithi v Mombasa Municipal Council & Another (1993) eKLR which all reiterated the above position.

27. I therefore fail to understand why, despite the above knowledge, Counsel for the Applicant still deemed it necessary to challenge the grant of leave by way of filing an interlocutory Application before the Magistrate. In my view therefore, that Application, which formed the basis of the current Application, was wholly unnecessary in the first place. The Applicant ought to have waited to canvass the issue at the full trial.

Whether stay of proceedings of the suit before the Magistrates Court should be ordered 28. Having declined to grant leave for filing an Appeal out of time, the issue of stay of proceedings does not therefore arise.

Final Orders 29. Having carefully considered the matter therefore, I am satisfied that the Application does not meet the criteria for grant of stay of proceedings pending Appeal

30. The upshot of my findings above is that the Application fails. Consequently, I issue the following orders:i.The Applicant’s Chamber Summons dated 12/04/2023 seeking, inter alia, leave to appeal out of time and for stay of proceedings of Eldoret CMCC No. 671 of 2015 is hereby dismissed.ii.Costs of the Application is awarded to the Respondent.iii.The parties shall now take expeditious steps to prosecute the suit pending before the Magistrate’s Court.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023WANANDA J.R. ANURO...................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR