[2022] KEHC 18060 (KLR)

Republic v Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Co-operatives & 2 others; Kenya Tea Development Holdings Limited (Exparte) (Application 003 of 2020) [2022] KEHC 18060 (KLR) (Judicial Review) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 18060 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 003 of 2020

J Ngaah, J

November 11, 2022

Between

Republic

Applicant

and

Cabinet Secretary, Ministry of Agriculture, Livestock, Fisheries & Co-operatives

1st Respondent

Agriculture & Food Authority

2nd Respondent

Hon. Attorney General

3rd Respondent

and

Kenya Tea Development Holdings Limited

Exparte

Ruling

1. The application before court is a motion dated May 24, 2022 seeking leave for the firm of Kipkenda & Company Advocates to formally come on record as advocates for the 2nd respondent in place of Gitobu Imanyara & Company Advocates. The applicant also seeks leave to file and serve a notice of appeal out of time.

2. The application is stated to be brought under Article 159 of the Constitution, Order 51 rule 1, Order 9 (a) and 10 and Order 50 theCivil Procedure Rules.

3. It is supported by the affidavit of Peris Mudida who has described herself in the affidavit as the acting Chief Executive Officer of the Tea Board of Kenya which is itself described as “formerly of Agriculture and Food Authority”.

4. Ms. Mudida has sworn that the 2nd respondent appointed the firm of Gitobu Imanyara & Company Advocates to represent it in the instant suit. Judgment was delivered on February 21, 2022. The 2nd respondent was dissatisfied with the judgment and so on February 25, 2022 it instructed its advocates to appeal against the judgment.

5. By March 11, 2022, the firm of Gitobu Imanyara & Company Advocates had not filed the appeal and so on that date the 2nd respondent withdrew its instructions from the advocates. It is at the same time that the firm of Kipkenda & Company Advocates was instructed to take over the matter.

6. On March 15, 2022, the firm of Kipkenda & Company Advocates wrote to the firm of Gitobu Imanyara & Company Advocates requiring it to execute a consent to enable Kipkenda & Company Advocates to come on record for the 2nd respondent. The consent of the 2nd respondent’s advocates was necessary under Order 9 Rule 9(b) of the Civil Procedure Rules considering that the suit in which Kipkenda & Company Advocates are to be placed on record had been concluded.

7. The firm of Gitobu Imanyara & Company Advocates declined to sign the consent. It then became inevitable that the 2nd respondent files the instant application for the firm of Kipkenda & Company Advocates to obtain the requisite leave of this honourable court to come on record for the 2nd respondent and file an appeal against the judgment rendered on February 21, 2022.

8. The ex parte applicant opposed the motion and in that regard Dr. John Kennedy Omanga, swore a replying affidavit on its behalf. Dr. Omanga swore that he is the company secretary of the ex parte applicant.

9. By and large, Dr. Omanga has agreed with the 2nd respondent that the latter never filed nor served the notice of appeal within the prescribed timelines and that the ex parte applicant only came to learn of the intended appeal on June 2, 2012 when its advocates were served with the instant application.

10. According to the ex parte applicant, no reasonable explanation has been given for the delay in serving the notice of appeal within the prescribed time and therefore the applicant does not deserve any assistance from this honourable court.

11. I have considered the applicant’s application and the response thereto. I have also considered the respective parties’ submissions. They are both in agreement that under Rule 75 of the Court of Appeal Rules, the notice of appeal ought to have been filed within 14 days of the date of the judgment appealed against and that the said notice ought to have been served within seven days of the date of lodging the notice.

12. There is also no dispute that the 2nd respondent neither filed nor served the notice of appeal within the prescribed timelines. As a matter of fact, this is the sole reason behind the present application. The applicant wants the notice of appeal to be filed and served out of time.

13. The applicant has proffered an explanation why it delayed in taking the necessary steps against the impugned judgment within the prescribed timelines. In particular, it has stated that despite the fact that it instructed its previous advocates to appeal the decision of this honourable court, they never did as instructed or at all.

14. Although the applicant’s advocates failed to take up the applicant’s instructions and file the appeal, they still declined to co-operate and allow the firm of Kipkenda & Company Advocates to come on record and file the appeal. This back and forth led to a further delay in filing the notice and serving it.

15. These depositions have not been controverted. Again, the prayer for the firm of Kipkenda & Company Advocates to come on record for the 2nd respondent applicant has not been opposed.

16. In the absence of any evidence contrary to the depositions made on behalf of the 2nd respondent, I am satisfied with the explanation given for the delay in filing and serving the notice of appeal. I also note that this application was filed without inordinate delay. In any event, I do not see how the ex parte applicant, or any other party in this suit, will be prejudiced if the 2nd respondent is allowed to file and serve the notice of appeal out of time. Accordingly, I hereby exercise my discretion in favour of the 2nd respondent, the applicant in the instant application, and allow the application.

17. The firm of Kipkenda & Company Advocates is hereby allowed to come on record as advocates for the 2nd respondent in place of the firm of Gitobu Imanyara & Compnay Advocates. Leave is hereby granted to the 2nd respondent to file and serve its notice of appeal out of time. The 2nd respondent shall file and serve the notice within 14 days from the date of this ruling. Parties will bear their respective costs. It is so ordered.

SIGNED, DATED AND DELIVERED ON 11 NOVEMBER 2022NGAAH JAIRUSJUDGE