[2020] KEHC 1203 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 790 OF 2019

PAUL ODHIAMBO NYAKWAKWA...........APPLICANT

-VERSUS-

ROSE NYAKABETE.................................RESPONDENT

RULING

1. The subject matter of this ruling is the Notice of Motion dated 16th December, 2019 taken out by the applicant in this instance and supported by the grounds set out on its body and the facts stated in the affidavit of the applicant. In the aforesaid Motion, the applicant sought for leave to file an appeal out of time against the judgment delivered by Honourable Nditika(Mr.) learned Senior Resident Magistrate on 11th February, 2013 in CMCC NO. 7287 OF 2009, and for costs to be provided for.

2. Fidelis Mueke Ngulli, advocate for the respondent, swore a replying affidavit in resistance to the Motion.

3. At the interparties hearing of the Motion, the respective advocates for the parties chose to rely on the documents filed in respect to the Motion.

4. I have considered the grounds laid out on the body of the Motion; the facts deponed in the affidavits supporting and opposing the Motion; and the list and bundle of authorities filed by the applicant.

5. It is clear that the substantive order sought in the Motion is that of leave to file an appeal out of time against the impugned judgment and decree.

6. Section 79G of the Civil Procedure Act sets the timelines forlodging an appeal against the decision of a subordinate court as 30 days from the date of the decree or the order being appealed against. The provision goes on to express that an appeal can be admitted out of time where sufficient cause has been shown.

7. The guiding principles to be satisfied in an application seeking for leave of the court to file an appeal out of time/extension of time were the laid out in the case of Thuita Mwangi v Kenya Airways Limited [2003] eKLR and were reaffirmed in the case of Growth Africa (K) Limited & another v Charles Muange Milu [2019] eKLR.

8. The first condition on the length of delay was not specifically addressed by any of the parties in their respective documents, though Fidelis Mueke Ngulli in his replying affidavit states that the Motion is frivolous, vexatious and a waste of the court’s time. I also note that a copy of the impugned judgment is annexed to the replying affidavit while a certified copy of the decree is annexed to the Motion.

9. It is clear therefrom that the aforesaid judgment was delivered on 11th February, 2013 which is more than six (6) years prior to the filing of the instant Motion. In my mind, it is fair to state that the length of time that has passed not only amounts to a delay but constitutes an unreasonable delay.

10. Concerning the reason for the delay, the applicant in his affidavit explains that following the delivery of the impugned judgment, the applicant’s advocate filed an application dated 3rd April, 2013 before the lower court, seeking similar orders as those presently sought.

11. The applicant states that the application was heard by Honourable Mr. Lorot and allowed, with the applicant being granted 28 days to file his appeal.

12. It is the assertion of the applicant that his advocate subsequently filed a memorandum of appeal on 4th June, 2013 upon the lapse of the 28 days, followed by the filing of the record of appeal without realizing that the time given had lapsed.

13. It is also the assertion of the applicant that the appeal was certified ready for hearing on 5th April, 2019 and that when the same came up for hearing on 16th July, 2019 the applicant was ordered to file a further supplementary record of appeal, which he did on 24th July, 2019.

14. According to the applicant, when his advocate attended court on 25th July, 2019 to confirm compliance with the above orders, the court granted him a mention date of 20th August, 2019 for purposes of fixing a hearing date. The applicant stated that it is around this time that his advocate realized that the appeal had been filed out of time and without leave of the court, thereby prompting the decision to withdraw the appeal by filing a notice of withdrawal on 19th August, 2019.

15. It is the assertion of the applicant that the error was due to his advocate’s inadvertence and that he should not be punished for it.

16. In reply, Fidelis Mueke Ngulli states on behalf of the respondent that the alleged mistake on the part of the applicant’s advocate is intentional and malicious, and that litigation must come to an end.

17. From my study of the documents annexed to the instant Motion, I noted that the applicant filed a similar application before the lower court, though the applicant did not avail a copy of the ruling in respect to that application.

18. I also established from the annextures to the Motion that the applicant thereafter filed a memorandum of appeal in High Court Civil Appeal No. 307 of 2013, though it is apparent that copies of the court proceedings were not availed for my perusal.

19. Notwithstanding, the notice of withdrawal of the aforementioned Appeal, there is an averment of the applicant that the appeal was eventually withdrawn as at 19th August, 2019, though no reasons have been indicated therein.

20. In my view, it remains unclear why the applicant’s advocate chose to withdraw the appeal rather than seek to rectify any errors arising therefrom. It would have been more practical for the applicant’s advocate to apply to have the appeal deemed as having been duly filed, upon seeking for the enlargement of time to file the same. To this extent, I concur with the sentiments of the respondent that this clearly amounts to a waste of both the court’s and the parties’ time.

21. However, upon considering the explanation given by the applicant and taking into account the legal principle that the mistake of an advocate ordinarily ought not to be visited upon the client, I find such explanation to be reasonable in the circumstances.

22. As relates to whether or not an arguable appeal exists, it is the applicants’ assertion that there exists an arguable appeal with high chances of success. The respondent did not address this court on this subject.

23. I established that the applicant did not annex a draft memorandum of appeal to his Motion. Nonetheless, upon my perusal of the grounds of appeal raised in the memorandum of appeal in High Court Civil Appeal No. 307 of 2013, I note that the appeal is primarily against the decision of the trial court to dismiss the applicant’s case with costs. The applicant through the memorandum of appeal earlier filed argues that the trial court did not consider the evidence presented on his behalf and therefore arrived at an erroneous decision. Taking these factors into account, I am satisfied that the applicant has demonstrated arguable points of law and fact, regardless of whether or not the intended appeal succeeds.

24. Under the final principle on prejudice, the applicant states that the respondent does not stand to be prejudiced if leave is granted for him to file his appeal out of time. On her part, the respondent is of the view that she will be prejudiced if the order sought is granted since the applicant has shown his unwillingness to prosecute his appeal.

25. It is apparent that whereas the trial case was instituted by the applicant, the same was dismissed by the trial court with costs to the defendant. It is also noteworthy from the impugned judgment that the applicant’s claim was in the nature of negligence arising out of a road traffic accident and that the applicant sought for damages against the respondent. It is therefore fair to state that the applicant stands to suffer a greater degree of prejudice if he is denied the opportunity to lodge an appeal against the dismissal order. I therefore find it reasonable for the applicant to be given the opportunity of challenging the subordinate court’s decision on appeal.

26. In the end therefore, I find merit in the instant Motion and I hereby allow it and make the following orders:

a) The applicant is granted leave of 14 days to file an appeal out of time against the judgement of the trial court delivered on 11. 2.2013.

b)Costs of the application to abide the outcome of the appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 4th day of December, 2020.

………….…………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Applicant

……………………………. for the Respondent