[2021] KEELC 3277 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC MISC. APPL. NO. 12 OF 2017

CONSOLIDATED WITHELC MISC. APPL. NO. 11 OF 2017

ONINDO ONINDO& ASSOCIATES ADVOCATES.......APPLICANT

VERSUS

GATATHA FARMERS CO. LTD...............................1ST RESPONDENT

KAITET TEA ESTATES [1977] LTD.........................2ND RESPONDENT

RULING

1. This is the third application by the applicants in this matter regarding taxation of bills of costs.

2. The applicant herein brought the first application dated 2/11/2018 and filed in court on the same date seeking that the costs allowed by the Deputy Registrar on taxation of the said Advocates’ Bill of Costs in Kitale ELC Misc. Civil Application No. 12 of 2017- Onindo Onindo & Associates Advocates and Gatatha Farmers Co. Limited and Kaitet Tea Estate [1977] Limited be reviewed and enhanced toKshs.3,745,141and or struck out and or remitted with appropriate directions to another Taxing Officer as the court may deem fit for consideration. The applicant also sought an order that the costs of that application be in the cause. That first application was dismissed leading to the lodging of an application dated 23/12/2020 seeking leave to appeal against the ruling in the first application; that second application was withdrawn on 27/2/2020 and subsequently the instant application dated 11/3/2020 which seeks extension of time to file an application seeking leave to appeal against this court’s ruling delivered on 18/7/2019or that the court do extend time for filing of such an application.

3. The grounds on which the instant application is premised are that the ruling was delivered without notice when advocates for the applicants were not in court and so they could not orally apply for leave; that the applicants being aggrieved at the ruling intend to appeal against it and that the applicants learnt of the ruling two weeks after it was delivered and the delay was not deliberate. Other grounds, and which in this court’s view are not quite relevant to the application at hand are that the court failed to consider the unique circumstances of the case and the principles of natural justice in the ruling; that the taxing master had agreed with the applicants that the suit property was about half a billion shillings as allegedly stated by the interested party in its pleadings and that the failure to appeal within the prescribed period was merely a procedural technicality. I think those last grounds should be reserved for the arguments in the application for leave to be filed perchance this application is successful.

4. The respondent filed a replying affidavit sworn by its advocate Peter Mwaniki Kiura on13/8/2020. This is the affidavit whose contentsMr. Kiuracounsel for the respondents adopted on14/4/2021when the matter came up for mention, with the slight amendment at paragraph 10 thereof to substitute the word “innocent” for “indolent”.

5. In that replying affidavit, it is deponed that: that the time within which to lodge an appeal began running on 18/7/2019when the impugned ruling was delivered; that the applicant was able to file the notice of appeal on31/7/2019yet he failed to seek leave to file an application for leave to appeal until 6 months had elapsed which was later withdrawn and this application filed; that the instant application was filed 9 months after the delivery of the ruling; that rule39(b)of the Court of Appeal rules provides that an application for such leave as is sought by the applicant ought to have been filed within 14 days from the date of the impugned decision; that the excuse that the delay was occasioned by the wait for typed proceedings is not plausible as they had filed a notice of appeal within time and in any event the typed proceedings were not needed in an application for leave; that the statutory timelines are meant to do justice to parties who relying on them need not fear proceedings would be brought against them beyond statutory timelines; that the delay of over 7 months has not been explained; that the record of appeal should have been filed by 6/1/2020 and that not having been done this court should not issue orders in vain; that taxed costs were paid in November 2018and only the respondent would be prejudiced by these proceedings.

6. The applicant filed written submissions in the matter on 14th April 2021. There were no submissions on the court record on behalf of the respondents by the time of the writing of this ruling. However it is on the record that Mr. Kiura the counsel for the respondent stated on the 14th April 2021when this matter came up for hearing that he would be not filing any submissions but would instead rely on the replying affidavit that has been analysed a herein above. I have considered the application, the response and the filed submissions.

7. The main issue for determination in this matter is whether this court should extend time within which an application for leave to appeal should be filed.

8. The discretion of the court to extend time for filing an application for leave, just like in an application for leave to file an appeal out of time, is unfettered but must be exercised judiciously. It must be remembered that the leave is the gateway to the exercise of an applicant’s constitutionally underpinned right of appeal. However extension or time is not a right of a party but as stated in the case of Nicholas Kiptoo arap Korir Salat vs IEBC & 7 Others (SC) eKLR, it is an equitable remedy that is only available to a deserving party at the discretion of the court. This court must consider whether the applicant has in the instant case laid a basis for the exercise of this court’s discretion to extend time to file an application for leave.

9. The application for extension of time must be brought without unreasonable delay. Where inordinate delay has occurred that delay should be explained to the satisfaction of the court. In the case of DHL Exel Suppl Chain Kenya Limited v Tilton Investments Limited [2015] eKLRthe Court of Appeal (Mwilu JA, (as she then was)) stated as follows:

“12. I take note that the orders sought are discretionary in nature which discretion is to be exercised judiciously with the ultimate intention of rendering justice, each case depending on its own merit….Under rule 39 of this court’s rules, such application for leave should be made within fourteen days of such decision sought to be appealed from. The determination of the application herein is dependent on the length of delay, the explanation for the delay and whether the same is inordinate or it can be excused. These considerations are largely factual in my view as I shall lay them out.”

10. The relevant rule here isRule 39(b) of the Court of Appeal Rules.It provides that an application for such leave as is sought by the applicant ought to have been filed within 14 daysfrom the date of the impugned decision. It states as follows:

“39. Application for leave to appeal in civil matters

In civil matters-

(a) …………………

(b) where an appeal lies with the leave of the Court, application for such leave shall be made in the manner laid down in rules 42 and 43 within fourteen days of the decision against which it is desired to appeal or, where application for leave to appeal has been made to the superior court and refused, within fourteen days of such refusal.”

11. It is clear that under Rule 39(b) of the Court of Appeal rules the applicant had 14 days from 18/7/2019 to file its application for leave to appeal. The 14 day period lapsed on 2/8/2019 and no application had been filed by then hence the current application for extension of time to do so. From 2/8/2019 to the time of filing the instant application is a period of 8 months and 6 days. What is the applicant’s explanation for the delay?

12. One of the grounds that the applicant relies on is that the delivery of the ruling was adjourned several times and that the applicant’s advocates were not in court when the ruling was finally delivered. It is correct that the record shows that the ruling was adjourned several times. On 28th February 2019 this court directed that the ruling would be delivered on 17/4/2019. Come that date, the ruling was not delivered. The matter was mentioned on 6/5/2019 when the court directed that the ruling would be delivered on 13/5/2019. On 13/5/2019 the ruling was not delivered and the court issued a notice to all advocates indicating that the rulings meant to be delivered that day would be delivered on 24/6/2019. The court did not sit for the whole month of June 2019 for personal reasons that required the Judge to be away, and a notice was issued on 4/7/2019 indicating that the June rulings would be delivered on 15/7/2019. That notice included the impugned ruling. However a second notice bearing the same date and message word for word but indicating that the June 2019 rulings would be instead be delivered on 18/7/2019 appears to have been prepared. The latter notice did not contain the impugned ruling in its list.

13. These notices being the last mode of communication the court adopted during that period before delivery of the ruling, it is assumed that all members of the Law Society of Kenya Kitale Chapter received the notifications. Now that the notice promulgating the date 18/7/2019 as the date for the ruling did not list the matter at hand, does it necessarily imply that the applicant’s counsel did not get to know of that date? It is also instructive that Mr. Ingosi advocate holding brief for Mr. Kiura for the respondent, appeared to have received the second notice and he appeared on behalf of the respondents at the time of the delivery of the ruling on 18th July 2019while the applicant’s representative was absent.

14. However, it is also instructive that Onindo & Onindo & Associates Advocates for the applicant filed a request for typed copies of proceedings and ruling in a letter dated 29/7/2019. A Notice of Appeal was filed on 31/7/2019 by the same firm of advocates.

15. The only logical conclusion is that as early as 29/7/2019,and that is11 days after delivery of the ruling, that firm of advocates somehow knew that the ruling had been delivered and filed some documents. They can not therefore be allowed to turn around rely on the averment that “the ruling in question was deferred more than 4 times and the advocates lost track of the same along the way”to justify their failure to file an application for leave to appeal within 14 days as prescribed or an application for extension of time before the delay became inordinate.

16. So, whereas the applicant may be correct in stating that the absence of his counsel at the delivery of the ruling denied it the opportunity to apply for leave orally whether that is allowed by law or not, and that the changes in dates of delivery of ruling may have confused it, it must account for the period that began running from the 14th day after the delivery of the ruling, which is 8 months and 6 days.

17. The applicant’s second reason for the delay is that it was still pursuing typed proceedings “immediately they learned of the ruling about two weeks after it was delivered.”

18. I agree with the submission by counsel for the respondent that the applicant did not need any typed proceedings in order to file the application for leave or the application for extension of time to file an application for leave.

19. However I have noted that the applicant was not totally idle during all this time. It appears that it filed an application dated 23/12/2019 which it pursued until 27/2/2020 when it withdrew it and lodged the instant application whose hearing has apparently borne the brunt of the current pandemic.

20. Apparently the applicant only realised long after filing that application dated 23/12/2019 that the 14 day period in Rule 39(b) CAR having expired, it was incumbent on it to secure prior leave hence the withdrawal. Slip-ups do occur and on numerous occasions the courts are compelled by the call of justice to overlook the mistakes of counsel when they would otherwise occasion considerable harm to their clients. In Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] eKLR Nambuye JAstated as follows:

“Counsel who accepts full responsibility for noncompliance with the time in filing of the record of appeal is the same one who filed the application under consideration without factoring in a prayer for validation of the incompetent notice of appeal seeking for a requisite prayer either to have the notice deemed as properly filed or for a fresh one to be filed. This default is also attributable to his office….

….In the circumstances of this application since counsel has taken full responsibility for noncompliance with the rules, it is my view that it would be not only unfair but unjust to pin responsibility on the client for noncompliance and use this as basis for withholding the exercise of discretion in the applicant’s favour.”

21. Though counsel in the instant case has attempted to shift the blame totally on the court procedures, this appears a purely instinctive reaction which this court must in its magnanimity pardon, given the weight of this matter; he has also expressly admitted that he made the erroneous decision of pursuing the typed proceedings instead of filing an application for leave, or, after the prescribed time lapsed, an application for extension of time. That omission places the lengthy delay squarely at his doorstep but unlike the counsel in Vishva Stone (supra) who exhibited heart-wrecking candour Mr. Ambutsi has shown himself to be deeply averse to any confession of that sort in the instant case. Should this court deny his client the opportunity to apply for leave simply for the reason of his counsel’s delay (and, to add, his inability to own up to the delay?) I think that should not be the case for two reasons as elaborated herein below.

22. First, I have noted that the delay may appear modest in comparison with the delay in the Vishva case (supra)which was one year and two months which was excused by the Court Of Appeal when it was shown that the delay was purely attributable to counsel and not client. On my part I am not inclined to shut out the applicant from achieving one step closer to exercising his right of appeal on account of mistake of counsel.

23. Secondly, one further step that I must take as we approach the denouement to this preliminary battle is to consider the inconvenience to be occasioned to the respondent who undeniably settled the costs long ago on 7/11/2018. It would appear that the respondent was convinced that no other proceedings would follow them once the time limited for application for leave to appeal was over. Mr. Kiura for the respondent has deponed that:

“Failing to meet statutory timelines is not a technicality but rather the intention is to do justice to parties who need not fear that proceedings would be brought against them beyond the set statutory timelines.”

24. This court is of the view that the deference accorded to the pursuit of the exercise of a litigant’s right of appeal must be balanced against the right of the opposite party to peace of mind after the proceedings have come to an end, especially where they have been condemned to a certain judgment or order and acquiesced under it as in this case.

25. Just in the same manner that a decree holder is entitled to execute a judgment of the court in his favour without delay, the judgment debtor is entitled to freedom from any commotion after they have settled the decretal sum, especially if they do so without demur and before any proceedings for extension of time to appeal or to seek leave to appeal have been lodged.

26. However it is clear that subject to the finding on an application for leave to appeal, the gateway to the applicant’s exercise of its constitutional right of appeal lies in securing extension of time to file an application for such leave to appeal. Hence, the second reason for considering the instant application favourably is that nothing would be demanded of the respondents during the pendency of the leave application if filed save the inconvenience of some expense in terms of legal fees which of course can be recovered at the end of the proceedings from the applicant if it is unsuccessful.

27. In the circumstances I find that the application dated 11/3/2021 has merit and I grant it in term of prayer No. (2) thereof. The costs of the application shall abide the outcome of the application for leave to appeal. The application for leave to appeal shall be filed and served within 14 days of this order failing which the extension of time granted shall automatically lapse.

It is so ordered.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 18TH DAY OF MAY, 2021

MWANGI NJOROGE

JUDGE, ELC, KITALE.