[2019] KEHC 11803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL CASE NO.E013 OF 2018

SUNDIP JAGDISHROY PATEL..............1ST APPELLANT/APPLICANT

HINA PATEL..............................................2ND APPELLANT/APPLICANT

VERSUS

AYAZ HUSSEIN MUKHI.....................................................RESPONDENT

RULING

(1) Before this Court is the Notice of Motion dated 10th December 2018in which SUNDIP JAGDISHROY PATEL, (the Applicant/Appellant herein) and HINA PATEL (the 2nd Applicant/Appellant seek the following orders:-

“1. SPENT

2. THAT this court grants the firm of Roba & Associates to come on record for the Applicants/ Appellants hereto,

3. Consequent to prayer two herein above being granted, the annexed notice of Change of Advocates be deemed to be duly filed and served upon payment of requisite court fees.

4. THAT this Honourable Court be pleased to issue an order granting the Applicants/ Appellants leave to file appeal on the ruling of the Deputy Registrar dated 25th October 2018.

5. THAT this Honourable court be pleased to issue an order staying the ruling of the Deputy Registrar dated 25th October 2018 and all consequential orders arising there from or attendant thereto pending the hearing of the intended appeal.

6. THAT this Honourable Court be pleased to issue an order staying the ruling of the Deputy Registrar dated 25th October, 2018 and all consequential Orders arising therefrom and attendant thereto pending the hearing of the intended appeal.

7. THAT the draft Memorandum of Appeal annexed herewith be deemed to have been properly filed upon payment of requisite statutory fees.

8. THAT the costs of this application be provided for.

The application was premised upon Order 50 Rule 6, Order 51 Rule 1, Order 49 Rule 7(2), Order 22 Rule 22, Order 9 Rule 9of theCivil Procedure Rules, Section 1A, 1B, 3A, 95 and 63 (e) of the Civil Procedure Actand any other enabling provisions of the law. The same was supported by the Affidavit sworn on 10th December 2018 by the 1st Applicant.

(2) The Respondent AYAZ HUSSEIN MUKHI filed a Replying Affidavit dated 9th January 2019 in which he opposed the application. The application was disposed by way of written submissions. The Applicants filed their written submissions on 31st January 2019 whilst the Respondent filed his written submissions on 6th February 2019.

BACKGROUND

(3) On 25th October 2018, the Deputy Registrar HON. S. OPANDE delivered a ruling in which he allowed the application made by the Respondent seeking to commit the Applicants to civil jail pursuant to an unsatisfied decree of the High Court issued in November 2016, vide HCCC No.335 of 2014. Being aggrieved by the decision of the Deputy Registrar the Applicants have moved this court seeking leave to appeal against that decision out of time. They further sought leave to have the firm of ROBA & ASSOCIATES come on record on their behalf.

(4) The Applicants contend that they were unware of and had no notice of the decision of the Hon Deputy Registrar of 25th October 2018 as their advocate on record at the time failed to notify them of the decision. They plead at the material time the 1st Applicant was incapacitated and had travelled to India for major surgery accompanied by the 2nd Applicant. That the Applicants only became aware of the orders for their committal to civil jail upon being tipped off by a friend that they were to be arrested by the OCS Jomo Kenyatta International Airport Police Station immediately, upon their return from India. They aver that it was due to their ignorance about the existence of the orders that they failed to file their appeal within the required time.

(5) The Respondent submitted that the present application was defective, bad in law and ought to be summarily struck out for reason that the same was filed by an advocate who was not properly on record for the Applicants. The Respondent challenges the 1st Applicant’s claim that he was seriously ill and hospitalized in India, and claims that this is merely a ploy calculated at abusing the court process. The Respondent submits that the present application is simply part of the applicants’ ongoing attempts to deny him the fruits of his litigation.

ANALYSIS AND DETERMINATION

(6) I have carefully considered the submissions filed by both counsels as well as the authorities cited therein and the relevant case law. The following issues arise for determination:-

(i) Whether the Applicants’ Advocate is properlyon record.

(ii) Whether leave to appeal out of time shouldbe granted.

(i) Is the firm of ROBA and Associates properly on record?

Order 9 Rule 9 of the Civil Procedure Rules provides as follows:-

“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court

(a) upon an application with notice to all the parties; or

(b) upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be”

(7) The Respondents submit that the firm of Roba and Associates are not properly on record for the Applicants and as such are not authorized to file any documents on behalf of the Applicants. In the present application the firm of Roba & Associates did seek leave vide prayer (2) to come on record for the Applicants. However this prayer was not canvassed and indeed there is no record of such leave having been granted.

(8) Counsel for the Applicant confirmed that they had by prayer (2) sought leave to come on record for the Applicants. He submits that given that the court gave directions for the filing of submissions, this amounted tacit leave to come on record.

(9) My own take is that the failure to have prayer (2) canvassed substantially was due to an oversight. The Respondents have raised this issue at the last minute. Section 1A of the Civil Procedure Act enjoins a Court to administer substantive justice. Section 1B of the same Act provides that Courts shall handle all matters with a view to ensuring the just efficient and timely determination of all cases. Section 3A provides that courts are empowered to make such orders as may be necessary to meet the ends of justice and to avoid the abuse of court process.

(10) I note that Roba & Associates have filed and responded to the numerous applications in this matter it would be unjust to disqualify them at this point. No objection was raised by the Respondent to this firm coming on record and I fail to see what prejudice the Respondents stand to suffer if the firm is allowed to come on record for the Applicants. Accordingly the firm of Roba and Associates is deemed to be properly on record for the Applicants in this matter.

(iii) Should leave to Appeal out of time be granted

(11) Order 49 Rule 7(3) of the Civil Procedure Rules provides that a party seeking to appeal against an order of the Deputy Registrar must file such appeal within seven (7) days of the decision. In this case the impugned decision was made on 25th October 2018. As such the Memorandum of Appeal ought to have been filed on or before 2nd November 2018. In seeking leave to file their appeal out of time the Applicants plead that the delay in filing their appeal was not deliberate. It is averred that this delay was occasioned firstly by the failure of their previous counsel to inform them about the ruling and secondly due to the fact that they were both out of jurisdiction in India where the 1st Applicant was undergoing treatment.

(12) In MWANGI –VS- KENYA AIRWAYS LTD [2003]eKLR, the court held as follows:-

a. “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.”

(13) The Applicant has attached his medical records in support of his claim that he was unwell. The document indicates that he was first seen at the Unit Sterling Hospital in Vadodara, India on 26th November 2018, and was later admitted on 29th November 2018. Although the court has no document e.g passport stamp to show exactly when the Applicants travelled to India, I am willing to accept that the 1st Applicant was ailing during the material time, which ailment necessitated his travel to India for treatment.

(14) The length of delay in this matter is also a valid consideration. As stated earlier the appeal ought to have been filed by 2nd November 2018. This application was not filed until 10th December 2018 a period of about 36 days after the ruling was delivered. In my view 36 days does not constitute inordinate delay. In any event I am satisfied that the delay has been satisfactorily explained by the absence of the Applicants from the country as well as their ignorance about the ruling. It is clear that upon being informed of the ruling the Applicants moved to engage a new lawyer and filed this application.

(15) The Applicants have prayed to have the annexed Draft Memorandum of Appeal deemed duly filed. It is not for this Court at this stage to look into the merits or otherwise of the intended appeal suffice to say that upon perusal I find that the same raises triable issues. The will be only fair to allow the Applicants to canvass their appeal before they are deprived of their liberty.

(16) Accordingly I do allow this application in terms of prayers (2), (3), (4) and (7). I grant a stay in terms of prayers (5) and (6) SUBJECT

(1) To the Applicants depositing as security a bank guarantee for the sum of Kshs.20 Million within thirty (30) days of today’s date and

(2) Subject to the Applicants passports being retained by the Court until the said appeal is heard and determined.

Failure to comply with the above conditions means that the stay granted will automatically lapse and the Applicants will be subject to committal to civil jail without any further reference to themselves.

No orders on cost.

Dated in Nairobi this 24th day of September, 2019.

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Justice Maureen A. Odero