[2022] KEHC 10143 (KLR)

Omutanyi & another (Suing as legal representatives of the estate of Ronald Marocha Oseko - Deceased) v M/S A.P. A Insurance Co. Limited (Miscellaneous Civil Appeal E010 of 2021) [2022] KEHC 10143 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10143 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Civil Appeal E010 of 2021

RL Korir, J

July 14, 2022

Between

Hilda Atsali Omutanyi

1st Applicant

Richard Oseko

2nd Applicant

Suing as legal representatives of the estate of Ronald Marocha Oseko - Deceased

and

M/S A.P. A Insurance Co. Limited

Respondent

Ruling

1. The Applicants filed a Notice of Motion Application dated 10th August 2021 which sought the following Orders: -I.Thatthis Honourable Court be pleased to extend time to appeal and admit the Applicants’ appeal out of time.II.Thatthe costs of this Application be provided for.

2. The Application was brought under Section 1(A), 1 (B), 3A and 79G of the Civil Procedure Act and Orders 50 Rule 6 and 8 and Order 51 Rule 1 of the Civil Procedure Rules. It is premised on the grounds set out on the take of the application.

The Applicants Case. 3. It was the Applicants case that the Judgment in Bomet PMCC No. 33 of2019 was issued on 8th March 2021. That they intend to file an Appeal out of time.

4. The Applicants avered that the delay in filing the Appeal was due to the fact that their advocates lost their contacts and were unable to reach them in time to advise them on the Judgment and the next course of action. It was their case that it was an inadvertent mistake on the part of their advocates.

5. It was Applicants case that the intended Appeal raised salient and pertinent issues of law and had an overwhelming chance of success. It was their further case that the Respondent would not suffer any prejudice if the Orders were granted. Thy Applicants opined that this application was made without undue delay.

The Applicants Submissions. 6. The Applicants submitted that the intended Appeal raised triable issues and that the Respondent would not suffer any prejudice. They stated that the courts had discretion whether or not to allow an Appeal out of time. They relied on the case of Edith Gichungu Koine v Stephen Njagi Thoithi [2014] eKLR to support this submission.

7. It was the Applicants’ submission that the delay was about 4 months and not the 6 months that the Respondent stated. That a delay of 4 months could not be said to be inordinate. It was their further submission that they made an effort to reach their advocates office and moved to court immediately upon learning of the Judgment. That the delay was occasioned by an excusable mistake on the part of their advocates. They relied on the case of Agip (Kenya) Limited v Highland Tyres Ltd [2001] eKLR to buttress this submission.

8. The Applicants submitted that in exercising its discretion to grant leave to appeal out of time, the court should weigh between the Applicants right to appeal and the prejudice occasioned to the Respondent. That the Respondent had not alluded to any prejudice that it would suffer if the Application was allowed. They further submitted that disallowing their application would deny them their right to a fair hearing and that whatever loss that the Respondent would suffer would be compensated by way of costs. They relied on the case of Paul Muthini Kimongo v Flexpac International Limited [2019] eKLR.

9. It was the Applicants submission that they annexed a draft Memorandum of Appeal which demonstrated pertinent issues of fact and law. That it was in the best interest of justice that they be given time to articulate their grounds in a hearing and a decision made on merit. They relied on the case of Joseph Gitahi Gachau & Another v Pioneer Holdings (a) Limited & 2 others[2009] eKLR to support this submission.

The Respondent’s Case. 10. The Respondent opposed the Application through a Replying Affidavit dated 25th September 2021 sworn by their advocate Duncan Otieno Njoga. It was its case that an advocate owes his or her client a duty of communication on all matters pertaining to a case. That the advocates ought to have informed their client of the outcome of the Judgment of the subordinate court in due time.

11. The Respondent stated that the grounds raised in the application were not sufficient to warrant the Memorandum of Appeal to be admitted out of time. It was its further case that the Application was frivolous, vexatious, an abuse of the court process and an afterthought that lacked merit.

12. It was the Respondent’s case that the delay between the delivery of the Judgment and the filing of the Application was 6 months and 17 days. That the duration was extremely inordinate and that the Applicants did not deserve the court’s discretion in their favour.

13. The Respondent opined that if the court was inclined to grant the Applicants leave, then they should provide security for costs of the Appeal.

The Respondent’s Submissions. 14. The Respondent submitted that the decision to grant or deny leave to appeal out of time was a discretionary one and the discretion was based on fixed principles and not sympathy. That such discretion ought to be exercised on the basis of evidence and sound legal principles.

15. It was the Respondent’s submission that the explanation given for the delay was implausible and shaky. That the Applicants did not meet the conditions set for the grant of an order to extend time to file an Appeal. It relied on the cases of Mbukoni Services Limited & Another v Mutinda Reuben Nzili & 2 others [2021] eKLR and Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.

16. The Respondent submitted that the court could not enlarge time to file an Appeal solely on the ground of a mistake of an advocate. That it was the duty of the litigant to consistently check with the advocate on the progress of their case. It relied on the case of Savings & Loans Ltd v Susan Wanjiru Muritu (Nairobi) (MILIMANI) HCCC NO. 397 of 2002 to support this submission.

17. In conclusion, the Respondent submitted that the Applicants have not met the threshold set out in Section 79G of the Civil Procedure Act as they had not explained the length of the delay and they had failed to give a plausible explanation for the delay.

18. I have read through and considered the Notice of Motion Application dated 10th August 2021, the Replying Affidavit dated 25th September 2021, the Applicants Written Submissions dated 1st March 2022, the Respondent’s Written Submissions dated 27th January 2022. The only issue for my determination is whether the Applicants should be granted leave to file an appeal out of time.

19. 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.”

20. This court is clothed with the discretion to decide whether or not to grant leave to file an appeal out of time. Such discretion ought to be exercised within the principles of the law. The principles were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 of 2020) UR where it was held:“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 in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”

21. The Applicants stated that the Judgment in Bomet PMCC No. 33 of 2019 was issued on 8th March 2021. That they had been unable to file an Appeal within the required time as their advocates had failed to inform them of the Judgment as they had lost their contacts.

22. The importance of giving a sufficient reason for the extension of time to appeal was discussed in the Court of Appeal case of Susan Ogutu Oloo & 2 Others v Doris Odindo Omolo [2019] eKLR where it was held:“In an application for extension of time, the single Judge has discretion. I am aware that the discretion I have is to be exercised judiciously and not whimsically or capriciously. The guiding principles on the issue of extension of time was laid out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Iebc (2014) eKLR Sup. Ct. Application No. 16 OF 2014. The Supreme Court aptly stated extension of time is not a right of a 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 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”.

23. The Applicants stated that the reason for the delay was an inadvertent mistake on the part of their advocates. In the case of Ana And Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR, the Court of Appeal held:-“From past decisions of this court, it is without doubt that courts will readily excuse a mistake of counsel if it affords a justiciable, expeditious and holistic disposal of a matter”.Similarly, in the case of Phyllis Kariuko Njagiv ane Waguama Njagi & Another [2018] eKLR, Gitari J held that: -“In my view a mistake is a mistake, and as long as sufficient explanation is given showing good faith like in this case, it should be excused and a party given an opportunity to be heard on their grievances on merit”.

24. However, such discretion to grant leave is not automatic. In the case of Ana And Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others (Supra), it was held:-“However, it is to be noted that the exercise of such discretion is by no means automatic. While acknowledging that mistake of counsel should not be visited on a client, it should be remembered that counsel’s duty is not limited to his client; he has a corresponding duty to the court in which he practices and even to the other side”.

25. The Applicants have admitted to not calling their advocates frequently to check up on the progress of their case as they were expecting their call. This showed indolence on the part of the Applicants. However, I am satisfied by the explanation for the 4-month delay by the Applicants and find that an advocate’s mistake should not be visited upon their clients.

26. On whether the Appeal was arguable and raised pertinent issues of law, I have perused the Draft Memorandum of Appeal dated 10th August 2021 and I find that it was arguable as it raises issues that required judicial determination. In the case of Kenya Industrial Estate Limited & Another v Matilda Tenge Mwachia2021] eKLR, the Court of Appeal held that: -“As stated earlier, an arguable appeal is one that is not frivolous but raises a bona fide issue deserving determination by a Court and a single bona fide issue would suffice”.

27. The Respondent has not showed the prejudice it will suffer if the Order sought was granted. In the case of Ngwambu Ivita v Akton Mutua Kyumbu [1984] KLR 441, the Court of Appeal held that: -“The Defendant must however satisfy the court that he will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution.”

28. The Respondent however stated that should this court grant the leave sought, then the Applicants should provide security for costs of the Appeal. It is trite law that security for costs can be ordered by a trial court in its discretionary power. In the case of Marco Tools & Explosives Ltd v Mamujee Brothers Ltd, [1988] Klr 730, the Court of Appeal held: -“The Court has unfettered judicial discretion to order or refuse security. Much will depend upon the circumstances of each case, though the guidance is that the final result must be reasonable and modest”.

29. It is my finding, having taken all factors into consideration, that the delay on the part of the Applicant was excusable and that no prejudice shall be visited upon the Respondents if the Applicant is allowed to file the appeal out of time. It serves the course of justice to have the issues in controversy determined on merit.

30. In the result, I exercise discretion, to grant prayer 1 of the Notice of Motion dated 10th August 2021.

31. The Applicant shall file and serve his Record of Appeal strictly within 30 days from the date of this Ruling. Failure to abide by this timeline will invalidate the leave granted.

32. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 14TH DAY OF JULY, 2022. ..........................R. LAGAT-KORIRJUDGERuling delivered in the presence of Mr. Menezes for the Respondent, N/A for Applicants and Kiprotich (Court Assistant)