Background
1. This ruling determines the Motion application dated 4th July 2024 which seeks leave for the firm of PETER WASANGA & CO ADVOCATES to be allowed to come on record for the applicant in place of Ms J.P. BONYO & CO. ADVOCATES. The application further seeks an extension of time to file an appeal out of time, against the judgment and decree of the lower court delivered on 19th May, 2023 in Civil Case No. 440 of 2019.
2. The applicant’s reason for not filing the appeal on time is allegedly a disagreement with his advocates, who failed to inform them about the entry of judgment. The applicant claims that he only became aware of the judgment upon inquiry and perusal of the Court file on at the registry on 27th June 2023. He implores this Court not to visit upon him the mistakes of his previous advocates and to allow the application, confirming his willingness to provide security.
3. The application is opposed. The respondents argue that the reasons given by the applicant attributed to a disagreement with his previous advocates and his lack of knowledge of the judgment have not been substantiated. That the same do not amount to a reasonable explanation for not filing the application on time.
4. The respondent confirms that the applicant’s erstwhile advocates were present during the delivery of the Judgment by the trial court. There is no proof of follow ups made to the registry by the applicant. The respondent therefore argues that the inordinate delay to file an appeal was clearly occasioned by events within the control of the applicant. The respondents further submit that the draft Memorandum of Appeal does not raise any arguable issue.
Analysis and determination
5. I have carefully considered the pleadings, submissions and evidence presented by the parties. The first issue for determination is whether the advocates for the applicant should be allowed to come on record. I note no particular objection from the respondents. As such, in line with Order 9 rule 9 leave is hereby granted for the firm of PETER WASANGA & CO ADVOCATES to come on record for the applicant in place of Ms J.P. BONYO & CO. ADVOCATES.
6. I now move to the substantive prayer for leave to file the appeal out of time. Section 79G of the Civil Procedure Act stipulates that:
“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.”
7. It is clear from statute that the test for admitting an appeal out of time is a good and sufficient reason being laid before the Court. The principles for consideration in cases for extension of time were enunciated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR, as follows:
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
i. 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;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
v. Whether there will be any prejudice suffered by the respondents if the extension is granted;
vi. Whether the application has been brought without undue delay; and
vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
8. In applying these principles to the matter before me, I note that although the applicant faults its erstwhile advocates for not informing him about the judgment having been passed, there is no evidence that the applicant made follow ups with his advocate. The evidence that counsel was present at the time judgment was rendered is not controverted. The applicant confirms that he even gave instructions to his counsel to file an appeal meaning that at this time Counsel was still acting on behalf of the applicant.
9. That being the case, upon instructing counsel to file the appeal the applicant was not reduced to a bystander in his own cause. It was his responsibility to follow up on the instructions. As stated, I have not been shown any evidence of follow up.
10. It is therefore insufficient for the applicant to attribute fault to their erstwhile Counsel without presenting concrete evidence to substantiate their claims.
11. In any case, the applicant further states that arising from the misunderstanding, he was forced to make follow up at the registry and eventually managed to peruse the court file. Again, no evidence of communication or follow up with the registry has been provided to substantiate this claim.
12. In this regard I align myself with the sentiments of the Court in Habo Agencies Limited V Wilfred Odhiambo Musingo, (Civil Appeal (Application) No. 124 of 2004) [2015] eKLR, that:
“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of the litigation. Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel.”
13. I have also considered the draft Memorandum of Appeal in light of the judgment delivered and I take the view that the intended appeal does not raise prima facie arguable grounds of appeal. In totality I am not convinced that a case has been made for the extension of time to file an appeal out of time.
Disposition
14. Accordingly, the application dated 4th July 2024 is devoid of merit and the same is dismissed with costs to the respondents.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 5TH DAY OF JULY 2024.
F. MUGAMBI
JUDGE