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JudgmentJASON ONYANGO BODO VS REUBEN OREM OWILI8 min read

JASON ONYANGO BODO VS REUBEN OREM OWILI

High Court at Kisumu High Court · · M.S.Shariff


  1. The Applicant herein has moved this court vide a notice of motion dated 16th October 2023 which is brought under the provisions of Section 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act CAP 21 Laws of Kenya and Orders 50 Rule 6 and 51 Rule of the Civil Procedure Rules.  The motion is supported by the two affidavits sworn by Bagada Mabale on even date and a further affidavit sworn by the same deponent on 16th January 2024.  The Applicant seeks the following orders:
  2. Spent
  3. That the honourable court be pleased to grant the Applicant leave to lodge an appeal out of time against the ruling delivered on 21st August 2023 by Hon. Nyigei PM in Kisumu CMCC Misc. civil No. 55 of 2020.
  4. That the memorandum of appeal annexed herewith be admitted and deemed to be properly on record and to have been so filed within the stipulated time.
  5. That the cost incidental to this application be cost in intended appeal.
  6. This application is resisted by the Respondent who swore a replying affidavit on 30th November 2023.
  7. It is instructive to note that whereas on 14/2/2023 I had granted the Applicant leave to file a supplementary affidavit within 14 days from that date, the Applicant failed to comply with the directions of this court but instead opted to sneak in a further affidavit on 16th January 2024.  Given that the same was filed without leave of this court I do hereby struck it out and the same is hereby expunged from these proceedings.
  8. The supporting affidavit to the application herein is sworn by Counsel for the Applicant and he concedes that due to lapses on his part he had failed to communicate the outcome of the ruling to his client hence failure to get instructions to file an appeal within the limitation period.
  9. Mr. Bagada further attributes the delay to what he says was inordinate delay by the court in issuing him with the impugned order.
  10. The Respondent has deponed that no reasonable explanation has been offered to justify the delay in complying with the provisions of Section 79G of the Civil Procedure Act.

ANALYSIS AND DETERMINATION:

  1. This application was canvassed by written submissions and both parties duly complied.  This court has duly considered the rival submissions of parties and the issue that arise for determination is;
  2. Whether the Applicant has tendered sufficient reasons to justify the exercise of this court’s discretion in his favour and thus enlarge his time for filing an appeal.
  3. The operative Section 79G of the Civil Procedure Act sets the frame for lodging an appeal, thus:

“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 [Rev. 2012] CAP. 21 Civil Procedure 35 [Issue 1] 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.”

  1. This court is also mandated to exercise the discretional  jurisdiction to enlarge time for the taking of any procedural step pursuant to the provisions of Section 95 of the Civil Procedure Act which states:

“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

  1. A reading of the above statutory provisions reveal that enlargement of time is an exercise of court’s discretion.  Whereas courts of law are bound to exercise discretional jurisdiction judiciously, each case has to be considered on its own facts and it is incumbent upon an Applicant who seeks enlargement of time to lodge an appeal against either a judgment or ruling of a subordinate court to show good cause (See Efram Yossef –vs- Rosemary W. Kihio (2018) eKLR).
  2. There exists in our jurisdiction, a profusion of precedential authority on the issue of enlargement of time to take scertain prescribed procedural steps.  In the case of Mwangi vs Kenya Airways Ltd (2003) KLR the Court of Appeal set out some of the parameters for enlargement of time as follows:
    1. The period of the delay.
    2. The reason for the delay.
    3. The arguability of the appeal.
    4. The degree of prejudice which could be suffered by the respondent if the extension is granted.
    5. The importance of compliance with time limits to the particular litigation or issue.
    6. The effect if any, on the administration of justice or public interest if any is involved.
  3. The impugned ruling was delivered on 21st August, 2023 while the application herein was filed on 17th October 2023. As at that time of moving this court, the Applicant had a delay of 27 days.  Whereas admission of professional negligence has been made by Counsel for the Applicant; that he failed to communicate the outcome of the application in the lower court and even proceeded on leave, Counsel maintains that this court ought not visit  his mistake upon his client. I cannot fathom that parliament, in its wisdom enacted Sections 79G and 95 of the Civil Procedure Act for purposes of enabling courts cover the backs of negligent advocates.  The Applicant’s Çounsel was present when the impugned ruling was delivered yet, as an agent of his client, failed to communicate the outcome of the application to his principal.  The latter who is the instructing party has a duty to follow up on his case and ensure that his instructions to his advocates are executed to the letter.  I do find that both the Applicant and his advocate were indolent for a period of 27 days.
  4. In the case of Duale Mary Ann Gurre -vs- Amina Mohamed Mahamood and Anor (2014) eKLR Chief Justice Emeritus Willy Mutunga held as follows:

“An advocate is the agent of the party who instructs him and such instructing client as the principal continues to have the obligation and the duty to ensure that the agent is executing the instructions given.  In the case of litigation, the suit belongs to the client and the client has an obligation to follow up with is Advocate to ensure the Advocate is carrying out the instructions as given.  The litigation does not belong to the Advocate but the client.  If the advocate commits a negligent act the client has an independent cause of action against the Advocate.”

  1. It is noteworthy that the other reason cited for non compliance with the timelines for lodging an appeal is the alleged delay in signing of the impugned order by the trial court.  I have searched high and lower in the supporting affidavit and I have not encountered any certificate of delay nor any letter requesting for supply of the impugned order.  It is trite law that he who avers must prove.  In this instance the Applicant has failed to comply with the provisions of Section 107(b) of the Evidence Act which provides as below:

“(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

  1. Premised upon the above analysis, this court is not persuaded by the reasons for delay cited by the Applicant.
  2. On the issue of arguability of the intended appeal, I have perused the draft memorandum of appeal and I do note that one of the applicant’s grounds of appeal is that he was condemned without being accorded an opportunity to defend the case yet the Respondent had joined him as a party in the application then before the trial court.  Whereas at this stage, I ought not consider the merit of the intended appeal, I do find that to condemn a party without a hearing is an affront to the rules of natural justice, and one’s right to a fair hearing as enshrined under article 50(1) of the Constitution of Kenya 2010 which provides that:

“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

  1. I therefore find that the Applicant has an arguable intended appeal.
  2. Turning to the degree of prejudice that the Respondent might suffer if time is enlarged, I do find that the Respondent does not stand to suffer any prejudice regard being had to the fact that he is the one who brought the Applicant before the trial court and then decided to proceed without reference to him.  If the Respondent had intended to prosecute his application in the trial court without notice to the applicant, then the best option would have been to avoid joining the Applicant as a party all together.
  3. In regard to the importance of complying with timelines in respect of subject matter I do find that given that the application before the trial court which the respondent prosecuted exparte was for a declaration of a presumption of death of one Owili Ochung who is said to have been in communicado for more than 7 years as at the time of institution of the application before the subordinate court, I do find that time is not of essence.

CONCLUSION:

  1. On the balance I am inclined to allow the application and I do hereby make the following orders:
  2. The Applicant herein is hereby granted leave to file an appeal against the ruling of Hon. Nyigei delivered on 21st August 2023 in Kisumu CMCC No. 55 of 2020:  Reuben Orem Owili -vs- Jason Onyango Bodo, within 10 days from the date hereof.
  3. The Applicant is directed to file and serve record of appeal and submissions within 20 days from the date hereof and the Respondent is directed to file his submissions within 30 days from the date hereof.
  4. Given that the delay was occasioned by Mr. Bagada, I do hereby order that he personally pays the costs of this application to the Respondent, which costs I assess at Ksh.17,000.
  5. This file is marked as closed.

Delivered, signed and dated at Kisumu this 30th day of May, 2023.


    JASON ONYANGO BODO VS REUBEN OREM OWILI JASON ONYANGO BODO VS REUBEN OREM OWILI