[2022] KEHC 2028 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

MISCELLANEOUS APPLICATION NO. E009 OF 2022

RUPA SAVINGS & CREDIT

COOPERATIVE SOCIETY.........APPELLANT/ APPLICANT

-VERSUS-

VIOLET SHIDOGO..........................................RESPONDENT

Coram: Hon. Justice R. Nyakundi

M/S Quincy Jesse Kiptoo & Associates for the appellants

M/S Kogo Kimutai & CO. Advocates for the respondent

R U L I N G

INTRODUCTION

The delay in justice administration is one of the biggest obstacles in our legal system in which speedier, cheaper and more accessible justice is many a times an illusory to the citizens of the Republic. The process of the court of law is elaborate but slow and costly. In due course of time a need for a responsive system of adjudication has arisen which is more suited to the emerging requirements of the society to overcome the crises of delays and backlogs in the administration of justice system. This is the crux of the matter in the instant application. The main issue is whether the applicant has shown cause to justify the granting of the extension to file an appeal out of time. Some of the settled principles that would be discussed hereunder delve into the role of judicial discretion in assessing the threshold test of granting extension. It is acknowledged that for this discretion to be exercised the applicant must show good and substantial reasons of failure to initially file an appeal within time.

1. In the premises the Applicant approached this court by way of a Notice of Motion Application under Certificate or Urgency, both dated the 31st day of January 2022 seeking orders that: -

1. Spent

2. This Honourable Court be pleased to extend and/or enlarge the time for filing the instant appeal out of time against the judgement of the Honourable Cooperative Tribunal delivered on 4th March, 2021in tribunal cause number 689 of 2019.

3. This Honourable Court be pleased to grant a stay of execution of the judgment of the Honourable cooperative Tribunal delivered on 4th March, 2021in tribunal cause number 689 of 2019 pending inter-parties hearing and determination of this application.

4. This Honourable Court be pleased to grant a stay of execution of the judgment of the Honourable cooperative Tribunal delivered on 4th March, 2021in tribunal cause number 689 of 2019 pending the hearing and determination of the intended appeal by the Applicant herein.

5. That subject to prayer 2 above, the annexed draft memorandum of appeal be deemed to be duly filed and properly on record.

6. This Honourable Court be deemed to grant any further directions that may be necessary for the expeditious determination of this appeal.

7. Costs of this application be in the cause.

2. The Application was based on the grounds that on 4th March 2021, the Cooperative Tribunal ordered the Applicant to pay the Respondent the sum of Kshs. 510,000/- plus costs of the suit and interest. The Applicant claims that its advocate on record at the time did not appraise it of the delivery of the judgement. The Applicant further claims that despite writing to the advocate in question on 15th May 2021 and later on 10th August 2021, the advocate did not respond or appraise the Applicant on the status of the case. The Applicant alleges that it only until it was served on 3rd December 2021 with the extracted decree of the Cooperative Tribunal that it was amazed to discover the matter had since ended and judgement delivered.

3. The Applicant states that it consequently instructed its current counsel to follow up the matter and file the instant application to enlarge the time to file an Appeal. It states that it requested for provision of certified copies of the judgment, decree and typed proceedings in this matter via a letter of 10th December 2021 from the Cooperative Tribunal. The Applicant blames its former counsel on record and on the breakdown of the relationship with its former advocate on record and it urged the court not to visit the mistake of counsel on it.

4. The Applicant also urged the Court to note that the time for filing an Appeal encompasses any such period used to prepare the Record of Appeal and notes that in this case, a certified copy of this Court’s decree was only available on and is dated 30th November 2021. Further, the Applicant argued that the Respondent’s financial circumstances were in doubt therefore there was a real risk that she may be unable to refund the sums owed if the Appeal were to be successful. The Applicant urged the Court to consider that any delay was slight and that in any event, it could be mitigated by costs.

5. The Application was supported by the Affidavit of Charles Rotich sworn on 26th January 2022, the deponent describing himself as the chairman of the Applicant herein. He reiterated the facts grounding the application and produced the judgement of the Cooperative Tribunal; copies of the letters written to their then counsel, Magut and Sang Associates Advocates requesting a status update on the suit; a copy of their letter of 10th December 2021 seeking documents to prepare a Record of Appeal; and their draft memorandum of appeal.

6. The Applicant also filed a further affidavit sworn on 21st February 2022. Therein he clarified that whereas he sought the documents necessary to prepare a record on 10th December 2021, it was only in 2022 that it received these documents. Even then, it claims that the documents were full of typographical errors more so the judgement of the Cooperative Tribunal.

7. The Defendant did not file a response to the Application. When the matter came up for inter-parties hearing, the Defendant was directed to file and serve her response by 22nd February 2022. To date these directions are yet to be complied with therefore the Application is unopposed.

8. From the foregoing I find that the following issues for determination arise in this suit:

i) Whether the Application meets the threshold for enlargement of time to file an appeal; and

ii) Whether the Application meets the threshold for grant of stay of execution pending appeal.

9. On the first issue for determination, the question of enlargement of time to file an Appeal from a subordinate Court to the High Court is governed by section 79G of the Civil Procedure Act which provision states:

“79G. Time for filing appeals from subordinate courts

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.”

10. Whereas this provision pertains to subordinate courts, the principles surrounding the exercise of this discretion to enlarge time for filing of an appeal apply in the case of appeals preferred from decisions of subordinate courts in the same manner. With this in mind, the question of whether the Appellant herein should be allowed to pursue this appeal is subject to the Applicant satisfying to the Court that he has good and sufficient cause for not filing the appeal in time.

11. In this application, the Applicant has alleged that the reason an appeal was not filed in time is due to indolence on the part of their then counsel on record. The Applicant claims that there was a breakdown in communication and despite writing several times to seek an update on the matter, no information was forthcoming from the said advocate. The Supreme Court of Kenya has laid down some general guidelines to help determine the handling of an application to enlarge time to file an appeal in the decision Fahim Yasin Twaha vs Timamy Issa Abdalla & 2 Others [2015] eKLR which I cite with approval where the court stated:

“"As regards extension of time, this Court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:

“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.

“… we derive the following as the underlying principles that a Court should consider in exercising 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 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. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;

5. whether there will be any prejudice suffered by the respondents, if extension is granted;

6. whether the application has been brought without undue delay; and

7. whether in certain cases, like election petitions, public interest should be a consideration for extending time”. [emphasis supplied].

12. Further, when the blame for the failure to file an appeal in time has been placed at the foot of the counsel on record, courts have determined that the mistake leading to the failure needs to be interrogated. I wish to cite with approval the Court of Appeal decisionItute Ingu & another v Isumael Mwakavi Mwendwa [1994] eKLR, wherein, faced with similar circumstances where the mistake of an advocate was the basis on which an application to file an appeal out of time, the court stated:

“What I understood the applicants to be telling me by citing this case is that the error by their advocate should not be a bar to my exercising my discretion in their favour. Since the amendment to this Court’s rule 4, the discretion of the Court under that rule is wholly unfettered and I agree with the applicants that a mistake by counsel, particularly where such a mistake is bona fide, can entitle an applicant to the exercise of the court’s discretion in his favour. But before doing so, the Court must, of necessity, examine the nature or quality of the mistake or mistakes.” (emphasis added)

13. The question therefore is, is the mistake of the advocate in this case reasonable or bona fide and has it been explained to the satisfaction of the Court? I think not in this case. The Applicant has merely cited a failure to be updated over the matter and had produced correspondence where it has sought information severally from its advocate. However, the failure to update them has not been explained well as this could have been triggered by any number of reasons. Merely claiming inaction on the part of its advocate is not sufficient reason and this is a position that was also taken by the Honourable Justice Odunga in Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLRwhich decision I cite with approval. He stated that:

“33. In this case the applicant has not expounded on the nature and quality of the inadvertence alluded to. This seems to be a case of mere inaction and as was held in Berber Alibhai Mawji vs. Sultan Hasham Lalji & 2 Others [1990-1994] EA 337, inaction on the part of an advocate as opposed to error of judgement or a slip is not excusable. Therefore pure and simple inaction by counsel or a refusal to act cannot amount to a mistake, which ought not to be visited on the client.”

14. Further, the Applicant has produced two letters addressed to Magut and Sang Associates Advocates. The said letters do not contain full addresses of the Advocates in question. They do not contain any receiving stamp by the said firm. They also are not addressed to a specific advocate in the firm. This Court notes that to date, the applicant has failed to cite a specific advocate in the firm above who handled the matter and who failed to act. If the mistake of counsel alleged cannot be identified with specificity and even the advocate in question cannot be identified, it becomes extremely difficult for this court to be satisfied that the Applicant is deserving of this Court’s orders. Therefore, I find that the entirety of the allegations that the failure to file an appeal on account of mistake of counsel is unproven on a balance of probabilities.

15. I wish to restate that enlargement of time is a matter of judicial discretion which is intended to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. To this end, courts have repeatedly emphasized that mistakes of counsel not amounting to bona fide mistakes are punishable as professional negligence.

16. Further, the Applicant remains the owner of the suit and the prosecution thereof is his responsibility. It is for this reason that the Court of Appeal in Rajesh Rughani vs Fifty Investments Limited & Another [2016] eKLRwhich decision I cite with approval, declined to simply blame inaction on the mistake of counsel instead stating:

“Our re -evaluation of record lead us to conclude that no credible, satisfactory and sufficient explanation for delay has been given. It is insufficient to blame previous counsel on record without an explanation as to the action taken by the litigant to show he did not condone or collude in the delay”

17. In Edney Adaka Ismail vs Equity Bank Limited [2014] eKLR, the court similarly declined to exercise its discretion simply because the Applicant claimed a mistake of counsel. The Court stated:

“It is true that where the justice of the case mandates, mistake of advocate even if they are blunders, should not be visited on the clients when the situation can be remedied by cost ....However, it is not in every case that a mistake committed by an advocate would be a ground for setting aside orders of the court”.

The Court went on further to state:

“I fully agree with the above holding. It is not enough for a party to simply blame the advocate but must show tangible steps taken by him in following up his matter”.

18. In this case, the applicant still had a duty to follow up and find out the status of its case. No evidence of any tangible steps taken to follow up the matter in the Court’s registry have been demonstrated despite the Applicant acknowledging that its letters were not being answered. The Applicant claims to have only known of the delivery of judgment when it was served with a copy of an extracted decree on 3rd December 2021. This means that from the first request for a status update on the case on 14th May 2021, through the second request of 10th August 2021 till 3rd December 2021, 203 days lapsed in between. This means that despite receiving no communication from its advocates, the Applicant still did not take any steps to find out the status of the case for over 6 months. Clearly, the delay by the advocate cannot be a satisfactory justification the court will use its discretion to grant the application. In the circumstances, this Court is inclined to find that the Applicant is deserving of this Court’s orders to enlarge time. Substantively, the applicant has a duty to demonstrate that there was a serious flaw of communication between his counsel on record which then will justify the grant of the reliefs sought in the application.

19. The mistake of their counsel to file an appeal can be prosecuted before the Advocates Disciplinary Tribunal as it does not amount to a bona fide mistake which this court can excuse. It is important the defence counsel representing a party in a litigation to appreciate the provisions of the constitution and the statute law on protection and preservation of rights enshrined under Article 50, Section 1(a), 1(b) of the Civil Procedure Act. Defence counsels must be independent and be able to exercise professional diligence to zealously pursue justice on behalf of his or her client. This entails putting the client’s interest ahead of any personal interest, as Legal presentation is a necessary prerequisite to a right to a fair trial which is constitutionally guaranteed as non derogable right. I feel it is the duty of legal counsels seized of matters before courts of law to stay on the brief in order to achieve justice unless otherwise instructions has been withdrawn by the client. It is trite that mistakes of counsel should not be visited on his/her client. However that as it may be to exercise discretion under this domain it is the duty of the aggrieved party to place before court prima facie evidence to tilt the scale of discretion squarely on this guiding principle. Am of the considered view that the applicant did not discharge that burden of proof concerning this remedy on extension of time. In Harod Miller and Ocean Breeze Hotel Limited –v- Carlene Miller(2016) JMCA App1the court observed inter alia that “If it is counsel?s fault that results in litigants?failures to comply with rules and timelines, it will generally be open to those litigants to pursue appropriate reliefs in the appropriate fora, as against those attorneys. Such fault or failures on the part of counsel, cannot, other than in the rarest of circumstances, properly be utilised as a good excuse for the failure to comply with requisite court timelines and schedules. If it were otherwise, one could simply avoid complying with the applicable timelines and schedules, by blaming one?s neglect to do so, on one?s attorney(s)-at-law.”

20. Nothing could be more undesirable for a court of equity to permit litigants to place reliance on mistake of counsel to agitate for their rights in our legal system. The age-long maxim on ignorance of the law is no defence being a presumption of law recognized in our jurisprudence can be contextualized in the circumstances of this application. It is legally unacceptable for the mistake of an advocate to be allowed as an excuse for the violation of express provisions of a statute. The defence of mistake of counsel unless proven by cogent and credible evidence should not be used as a tool to influence the judicial discretion of the court.

21. The determination of this application would be incomplete without giving due regard to the remedy on stay of execution. The applicant has invoked Order 42 Rule 6(1) of the Civil Procedure Rules for a stay of execution pending an intended appeal. In this discourse I am guided by the comparative principles in these authorities Marie Makhoul and Marguerita Desir v Sabina James Alcide SLUHCVAP No. 30/2011,the court held as follows:

"3. The general rule is for no stay, as a successful litigant is entitled to the fruits of his judgment without fetter. Accordingly, there must be good reasons advanced for depriving or in essence enjoining a successful litigant from reaping the fruits of a judgment in his favor, particularly after a full trial on the merits.

4. The modern authority on the guiding principles the court employs in exercising its discretion to grant a stay is the case of Linotype-Hell Finance Ltd v Baker where Staughton L.J. opined that a stay would normally be granted if the appellant would face ruin without the stay and that the appeal has some prospect of success. It must be emphasized that it is not enough to merely make a bald assertion to the effect that an applicant will be ruined. Rather what is required is evidence which demonstrates that ruination would occur in the absence of a stay.

5. The authority of Hammond Suddard Solicitors v Agrichem International Holdings is grounded in the same principle though formulated differently. In that case the court pointed out that the evidence in support of a stay needs to be full, frank and clear. They went on to state the principle thus:

“whether the court should exercise its discretion to grant a stay will depend on all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand if a stay is refused and the appeal succeeds and the judgment is enforced in the meantime what are the risks of the appellant being able to recover any monies paid from the respondent?"Similarly, in theMarguerite Desir casethe court held inter alia as follows: "The court's jurisdiction to grant a stay is based upon the principle that justice requires that the court should be able to take steps to ensure that its judgments are not rendered valueless. The essential question for the court is whether there is a risk of injustice to one or both parties if it grants or refused a stay. Further, the evidence in support of the application for stay of execution should be full, frank and clear. The normal rule is for no stay and if a court is to consider a stay, the applicant has to make out a case by evidence which shows special circumstances for granting one. The mere existence of arguable grounds of appeal is not by itself a good enough reason.”

22. The relevant questions and answers required by the court to exercise its unfettered discretion revolves around the above principles. In this respect the onus of prove rest with the applicant to present evidence to show that the facts on his or her case are within the rubric of the guidelines given by the court. Thus the same approach was taken by the court of appeal in Global Torus & Travels Limited; Nairobi HC Winding Up Cause NO. 43 of 2000 and in re Estate of the Late James Nganga Mwangi(Deceased) (2021)eKLRwhere the court held that “ As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting the order. And in considering those matters, it should bear in mind such factor as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

23. With regard to applicant’s representative affidavit it is averred that if stay of execution is not granted the appeal would be rendered nugatory and respondent may not be in a financial position to refund the decretal sum in the event the intended appeal succeed. What I glean from the affidavit in support in the relief on stay of execution is a blanket averment with no concrete foundational evidence. What had transpired as can be recalled from the impugned judgment is a money decree and therefore serous evidence must be properly ventilated before the court to unlock the power judicial discretion. No matter the general importance of a right of an appeal the court’s approach now is to seek to impose the interest of justice as an essential factor in declining or granting a stay of execution. This was the position taken by the court in Combi (Singapore) Pte Limited v Ramnath Sriram and Another [1997] EWCA 2164stated the following as the proper approach:“In my judgment the proper approach must be to make that order which best accords with the interest of justice. If there is a risk that irremediable harm may be caused to the plaintiff if a stay is ordered but no similar detriment to the defendant if it is not, then a stay should not normally be ordered. Equally, if there is a risk that irremediable harm may be caused to the defendant if a stay is not ordered but no similar detriment to the plaintiff if a stay is ordered, then a stay should normally be ordered. This assumes of course that the court concludes that there may be some merit in the appeal. If it does not then no stay of execution should be ordered. But where there is a risk of harm to one party or another, whichever order is made, the court has to balance the alternatives in order to decide which of them is less likely to produce injustice.”

24. Referring to the case at hand counsel for the applicant as a matter of memorandum of appeal is categorical on the course taken by the chairman of the tribunal. Therefore the question on appeal would be whether the chairman misconceived the facts and the law applicable in the circumstance of the case. It is obvious am not sitting on appeal but plainly as that may be this court presumably behind the legal screen must interrogate this question. Many questions arise on appeal but the court never loses sight of the jurisdiction of the trial court namely the advantage of an in-depth inquiry of the contested issues. On the same page the applicant has vehemently argued that if stay order is dismissed it will suffer substantial loss. While the intended appeal is pending from my perspective the applicants litigation history and subsequent notice of motion can be answered by the principles in Wilson Mukiibi –v- James Semusambwa Civil Application No. 9 of 2003 by the Ugandan Court stated that “a party seeking a stay of execution must satisfy the court that there is a sufficient cause why the party with judgment should postpone the enjoyment of it benefits. It is not sufficient for the judgment debtor to say that he is vulnerable, because the successful party may take out execution proceedings. It must be shown that if the execution proceeds, there may be some irreparable loss occasioned.”

25. I am persuaded that stay of execution is not available to the applicant in absence of demonstrative evidence relevant to meet the threshold on substantial loss. The question of existence of an arguable appeal is moot. In any event the points worthy of pursuit on appeal clearly stands on the decretal sum of Ksh 683,400/=. Even if we assume that the respondent executes against the applicant it is still his duty to adduce relevant evidence on the impecunious nature of the respondent to refund the payment upon the appeal succeeding. Unfortunately there is no evidence of irreparable harm as the standard of proof never shifted to the respondent in regard to this measure. Stay relief from a valid judgment of the court is an extraordinary remedy that should be granted when the moving party clearly and unequivocally demonstrates its necessity and the absence of it will leave him or her financially ruined.

26. I consider this to be one of the significant factors for the court’s interrogation as to whether the applicant may in the interim suffer irreparable harm not remedied in damages. The exercise of discretion being the judicial power to adjudicate claims is invoked depending on the circumstances of each case. The very reason it remains unfettered. No hard and fast rule can be laid down for the guidance of the court as to how they go about in the exercise of such discretion. As for me the applicant failed the test of being granted the reliefs applied for in the notice of motion dated 31/1/2022.

27. As a consequence pursuant to these findings all the writs in consonant to Article 50(1) and 159(2) of the Constitution of Kenya 2010, Sections 1A, 1B, 3A and 79G of the Civil Procedure Act Cap 21, Section 81(1) of the Co-operative Societies Act Cap 490, Order 42 Rule (6), Order 43 and Order 51 rules (1), (3), (4) and (6) of the Civil Procedure Rules, 2010 and all other enabling provisions of the law are denied with costs to the respondent.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 1st DAY OF MARCH, 2022.

............................

R. NYAKUNDI

JUDGE

In the presence of

1. Lutta for the Kiptoo for the applicant

(qjkassociatesadvocates@gmail.com,niccolaww@gmail.com, kogoadvocates@gmail.com)