(On application by way of Notice of Motion dated 19th September 2024)
1. The applicant under certificate of urgency filed the instant application by way of Notice of Motion dated 19th September 2023 according to sections 1A,1B,3,3A63(e) and 79G of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules seeking the following orders:-
a. Spent
b. Spent
c. THAT leave be granted to the applicant/appellant to file an appeal arising from the judgment in Nairobi CMELRC Cause No. E590 OF 2020 delivered by Hon. P.Muholi P.M. on 16th July 2021.
d. THAT the costs of this application be provided for.
2. The application was premised on Order 51 rule 4 of the Civil Procedure Rules namely that the intended appeal had arguable, plausible, and reasonable grounds with high chances of success, the delay to apply was not inordinate, the applicant’s previous advocates failed to update him of the outcome of the primary suit until he enquired in or about August 2022. The applicant states that the lower court inordinately delayed rendering certified typed proceedings and judgment until 28th July 2023 despite his application in 2022. The applicant swore an affidavit in support of the application on the 19th of September 2023 where he annexed the copies of the proceedings and judgment of the lower court as JOW1, a copy of the intended memorandum of appeal as JOW2, and a copy of a certificate of delay by the lower court 9th August 2023 as JWO3.
3. The application was opposed vide grounds of opposition dated 6th October 2023 and filed in court on 9th October 2023.
Written submissions
4. The application was canvassed by way of written submissions. The applicant’s written submissions drawn by Achola Jaoko & Company Advocates were dated 20th July 2024 and received in court on the 20th February 2024. The respondent’s written submissions drawn by Hamilton Harrison & Mathews were dated 8th March 2024 and filed in court on the 8th March 2024.
Decision
5. The court adopted the issues submitted by both parties for determination in the ruling being -
a. Whether the application to file an appeal out of time was filed without inordinate delay.
b. Whether the delay was justified.
c. Whether the intended appeal was arguable
d. Whether the ends of administration of justice shall be served upon granting the application.
The issue to be addressed under the broad issues is whether the application was merited.
Whether the application was merited
6. On the question of whether the delay was inordinate and unjustified -The applicant submitted that his advocates failed to inform of judgment and upon inquiries in August 2021 he learned of the delivery of judgment. The lower court delayed rendering typed proceedings which he stated to have applied for in 2022 and received on 28th July 2023. He relied on the provisions of section 79 G of the Civil Procedure Act to wit:-
‘’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.’’
7. The applicant to buttress his application relied on the decision in Belinda Murai & 9 Others v Amos Wainana (1978) e KLR where the Court of Appeal Law JA citing Shah v Bharmal & Brothers v Kumar (1961)EA 679 held that:- ‘’ mistakes of a legal adviser may however amount to sufficient cause under the East Africa Rule.’’ And in Haman Singh & Others v Mistri 1971 EA 122 where the Court of Appeal held that, ‘in relation to applications to this court for leave to appeal out of time , it has been held that mistakes of a legal advisor may amount to sufficient cause but not inordinate delay on his part..’’
8. The respondent submitted that the application is filed in an appeal and no prayer was sought to regularise the appeal already filed. The court finds that annexed to the application was the undated memorandum of appeal marked as JOW2. The receipt of payment indicated memorandum of appeal was filed as an annexure to the supporting affidavit. The Court returns that it can only be a draft of the memorandum of appeal filed for the Court to establish whether there exists an arguable appeal.
9. The Respondent submitted that the application lacks merit. The applicant relied on the decision of the Court of Appeal by M.K. Koome JA (as she then was) in Karny Zahray & another shalom Levi (2018)e KLR on the test for grant of leave of extension of time to file appeal where the Court observed: -‘’Some of the considerations to be borne in mind while dealing with an application for extension of time include the length of the delay involved, the reasons(s) for the delay, the possible prejudice, if any, that each party stands to suffer depending on how the court exercises its discretion; the conduct of the parties; the need to balance the interests of the party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal; the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure the timely resolution of disputes; the prima facie public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity. In taking into account the last consideration, it must be borne in mind that it is not the role of the single judge to determine definitely the merits of the intended appeal. This was for the full court if and when it is ultimately presented with the appeal.”
10. The respondent submitted that the delay was not justified. That the Civil Procedure Rules were not applicable but the Employment and Labour Relations Court(Procedure) Rules of 2016. That Rule 8(2&3) provides for appeal within 30 days of decisions. Under Rule 8 (3) the appellant did not require certified copies of the proceedings to file a memorandum of appeal. The judgment was delivered on the 16th of July 2021 and the appeal ought to have been filed on the 17th of August 2021. Even counting the days he was not aware of the judgment, the applicant ought to have filed an appeal in August 2022 when he became aware of the judgment. Even after obtaining the proceedings, the applicant did not move the court immediately. The delay of 2 years and 2 months from the date of judgment to the date of application was without convincing reasons.
Decision.
11. The judgment was delivered on the 16th of July 2021 in the presence of the claimant’s counsel. The claimant stated that the advocate did not inform him of the decision until he inquired in August 2021. He then stated the court inordinately delayed rendering certified typed copies. He produced CW3 a certificate of delay. The certificate was to Munyoki & Co advocates. It stated that the claimant vide the advocates applied for typed proceedings on 2nd February 2023 and not in 2022 as stated in the application.
12. The court observed the period of the certificate of delay was 2nd February 2023 to 28 July 2023. The instant application dated 19th September 2023 was filed on an even date. This delay after obtaining proceedings was not explained and cannot be blamed on the previous counsel. Section 79 G reads:- ‘’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.’’
13. Was there a good and sufficient cause for not filing the appeal in time? The claimant blamed the mistake of previous counsel and cited supporting authorities that a mistake of advocate was a sufficient reason to grant the leave. In Belinda Murai & 9 Others v Amos Wanaina (1978) e KLR the Court of Appeal cited Shah v Bharmal & Brothers v Kumar (1961) EA 679 in which Sir Alistair Forbes VP said on page 685:- ‘’…mistakes of a legal advisor may however amount to sufficient cause under the East African Rule.’’ The Court further stated the opinion was endorsed by Spry VP in Hamam Singh and others v Mistri (1971) EA 122 on page 126 where it was stated:- ‘’.. in relation to applications to this court for leave to appeal out of time, it has been held that mistakes of legal advisor may amount to sufficient case but not inordinate delay ín his part...’’
14. On the other hand, the respondent relied on the decision in Albert Kihima V Ezekiel Rugut (2014) e KLR where the Court of Appeal considered the Court’s power to enlarge time under Rule 4 of the Court’s Rules and stated:-‘The Court must consider the reasons advanced for failure to comply with the timelines provided for in the Rules. In this case, the applicant says that he got the court’s ruling in July 2010. Even assuming that is so, he ought to have filed the notice of appeal shortly thereafter or have very good reasons for not doing so. His notice of appeal was lodged on 5th October 2011 which was still nine (9) months later. His explanation that the respondent had filed other applications in the same file does not hold water because that could not have stopped him from filing this application. The insufficiency in the explanation and the delay fortifies the respondent’s submission that this application was only filed as an afterthought …..
The reason for delay has not in my view been sufficiently explained. The delay was inordinate and the applicant is therefore, guilty of laches. As the often cited doctrine of equity goes, “Equity does not aid the indolent”. The delay in this case is inexcusable and cannot be countenanced.’
15. The respondent further relied on the decision in Habo agencies Limited v Wilfred Odhiambo Musingo (2015)e KLR where Justice Waki JA stated:- ‘’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. It is true as submitted by Mr. Wambola that mistakes of counsel may be excusable.’’
16. The court taking into consideration the submissions of the parties and interested parties finds that a party who had instructed the advocate has sufficient reason to explain the delay based on a mistake of an advocate. The court finds that the same counsel who represented the claimant applied and obtained a certificate of delay meaning at all material times he was acting on instructions. The cited authorities of the Court of Appeal agreed that a mistake of the advocate was a sufficient cause to grant leave to appeal out of time as was the case herein. The court returns that there was no inordinate delay in applying for obtaining the certificate of delay.
17. On whether there was arguable appeal- the respondent submitted that taking into consideration the grounds of appeal and pages 15 and 16 of the judgment, that the applicant admitted he was assigned duties which he failed to perform leading to a patient escaping from the hospital and he was dismissed for negligence in performance of duty, there was no arguable appeal.
18. The court, on the issue of whether the draft memorandum of appeal disclosed an arguable appeal, is guided by the Court of Appeal in Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) (19 January 2024) (Ruling) where it was held that: “An arguable appeal is not one that must succeed and an applicant need not proffer a multiplicity of arguable points. One is sufficient. For a point to be arguable it needs merely to raise a bona fide point of law or fact sufficient to call for an answer from the respondent and is worthy of the court’s consideration.
33.Moreover, whereas such arguable points should ideally and conveniently be expressed in the form of a draft memorandum of appeal, there is no rule that it must be so. One can raise such grounds on the face of the motion and even in the supporting affidavit, as happened in this case.’’
19. The applicant in the draft memorandum of appeal raised the issue of judgment being based on CCTV footage which he contended was not adduced as evidence before the trial court to prove he was liable for the escape of the patient. That the CCTV footage was electronic evidence which was not adduced in compliance with the Evidence Act in sections 106 a and 106 b. The admissibility of evidence leading to finding him culpable was challenged.
20. The court holds that the appeal raises arguable points of law and facts as held by the Court of Appeal in Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) (19 January 2024) (Ruling) (supra).
21. In the upshot, the Court finds it is in the interest of justice to allow the application and grant leave to the applicant to file an appeal out of time.
22. The applicant is granted leave to file a memorandum of appeal together with the record of appeal within 30 days of this Order. Mention on 15th January 2025 to confirm the filing of the appeal and issue hearing directions.
23. Each party to bear its own costs in the application.
24. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18th DAY OF NOVEMBER 2024.
1. The applicant under certificate of urgency filed the instant application by way of Notice of Motion dated 19th September 2023 according to sections 1A,1B,3,3A63(e) and 79G of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules seeking the following orders:-
a. Spent
b. Spent
c. THAT leave be granted to the applicant/appellant to file an appeal arising from the judgment in Nairobi CMELRC Cause No. E590 OF 2020 delivered by Hon. P.Muholi P.M. on 16th July 2021.
d. THAT the costs of this application be provided for.
2. The application was premised on Order 51 rule 4 of the Civil Procedure Rules namely that the intended appeal had arguable, plausible, and reasonable grounds with high chances of success, the delay to apply was not inordinate, the applicant’s previous advocates failed to update him of the outcome of the primary suit until he enquired in or about August 2022. The applicant states that the lower court inordinately delayed rendering certified typed proceedings and judgment until 28th July 2023 despite his application in 2022. The applicant swore an affidavit in support of the application on the 19th of September 2023 where he annexed the copies of the proceedings and judgment of the lower court as JOW1, a copy of the intended memorandum of appeal as JOW2, and a copy of a certificate of delay by the lower court 9th August 2023 as JWO3.
3. The application was opposed vide grounds of opposition dated 6th October 2023 and filed in court on 9th October 2023.
Written submissions
4. The application was canvassed by way of written submissions. The applicant’s written submissions drawn by Achola Jaoko & Company Advocates were dated 20th July 2024 and received in court on the 20th February 2024. The respondent’s written submissions drawn by Hamilton Harrison & Mathews were dated 8th March 2024 and filed in court on the 8th March 2024.
Decision
5. The court adopted the issues submitted by both parties for determination in the ruling being -
a. Whether the application to file an appeal out of time was filed without inordinate delay.
b. Whether the delay was justified.
c. Whether the intended appeal was arguable
d. Whether the ends of administration of justice shall be served upon granting the application.
The issue to be addressed under the broad issues is whether the application was merited.
Whether the application was merited
6. On the question of whether the delay was inordinate and unjustified -The applicant submitted that his advocates failed to inform of judgment and upon inquiries in August 2021 he learned of the delivery of judgment. The lower court delayed rendering typed proceedings which he stated to have applied for in 2022 and received on 28th July 2023. He relied on the provisions of section 79 G of the Civil Procedure Act to wit:-
‘’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.’’
7. The applicant to buttress his application relied on the decision in Belinda Murai & 9 Others v Amos Wainana (1978) e KLR where the Court of Appeal Law JA citing Shah v Bharmal & Brothers v Kumar (1961)EA 679 held that:- ‘’ mistakes of a legal adviser may however amount to sufficient cause under the East Africa Rule.’’ And in Haman Singh & Others v Mistri 1971 EA 122 where the Court of Appeal held that, ‘in relation to applications to this court for leave to appeal out of time , it has been held that mistakes of a legal advisor may amount to sufficient cause but not inordinate delay on his part..’’
8. The respondent submitted that the application is filed in an appeal and no prayer was sought to regularise the appeal already filed. The court finds that annexed to the application was the undated memorandum of appeal marked as JOW2. The receipt of payment indicated memorandum of appeal was filed as an annexure to the supporting affidavit. The Court returns that it can only be a draft of the memorandum of appeal filed for the Court to establish whether there exists an arguable appeal.
9. The Respondent submitted that the application lacks merit. The applicant relied on the decision of the Court of Appeal by M.K. Koome JA (as she then was) in Karny Zahray & another shalom Levi (2018)e KLR on the test for grant of leave of extension of time to file appeal where the Court observed: -‘’Some of the considerations to be borne in mind while dealing with an application for extension of time include the length of the delay involved, the reasons(s) for the delay, the possible prejudice, if any, that each party stands to suffer depending on how the court exercises its discretion; the conduct of the parties; the need to balance the interests of the party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal; the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure the timely resolution of disputes; the prima facie public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity. In taking into account the last consideration, it must be borne in mind that it is not the role of the single judge to determine definitely the merits of the intended appeal. This was for the full court if and when it is ultimately presented with the appeal.”
10. The respondent submitted that the delay was not justified. That the Civil Procedure Rules were not applicable but the Employment and Labour Relations Court(Procedure) Rules of 2016. That Rule 8(2&3) provides for appeal within 30 days of decisions. Under Rule 8 (3) the appellant did not require certified copies of the proceedings to file a memorandum of appeal. The judgment was delivered on the 16th of July 2021 and the appeal ought to have been filed on the 17th of August 2021. Even counting the days he was not aware of the judgment, the applicant ought to have filed an appeal in August 2022 when he became aware of the judgment. Even after obtaining the proceedings, the applicant did not move the court immediately. The delay of 2 years and 2 months from the date of judgment to the date of application was without convincing reasons.
Decision.
11. The judgment was delivered on the 16th of July 2021 in the presence of the claimant’s counsel. The claimant stated that the advocate did not inform him of the decision until he inquired in August 2021. He then stated the court inordinately delayed rendering certified typed copies. He produced CW3 a certificate of delay. The certificate was to Munyoki & Co advocates. It stated that the claimant vide the advocates applied for typed proceedings on 2nd February 2023 and not in 2022 as stated in the application.
12. The court observed the period of the certificate of delay was 2nd February 2023 to 28 July 2023. The instant application dated 19th September 2023 was filed on an even date. This delay after obtaining proceedings was not explained and cannot be blamed on the previous counsel. Section 79 G reads:- ‘’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.’’
13. Was there a good and sufficient cause for not filing the appeal in time? The claimant blamed the mistake of previous counsel and cited supporting authorities that a mistake of advocate was a sufficient reason to grant the leave. In Belinda Murai & 9 Others v Amos Wanaina (1978) e KLR the Court of Appeal cited Shah v Bharmal & Brothers v Kumar (1961) EA 679 in which Sir Alistair Forbes VP said on page 685:- ‘’…mistakes of a legal advisor may however amount to sufficient cause under the East African Rule.’’ The Court further stated the opinion was endorsed by Spry VP in Hamam Singh and others v Mistri (1971) EA 122 on page 126 where it was stated:- ‘’.. in relation to applications to this court for leave to appeal out of time, it has been held that mistakes of legal advisor may amount to sufficient case but not inordinate delay ín his part...’’
14. On the other hand, the respondent relied on the decision in Albert Kihima V Ezekiel Rugut (2014) e KLR where the Court of Appeal considered the Court’s power to enlarge time under Rule 4 of the Court’s Rules and stated:-‘The Court must consider the reasons advanced for failure to comply with the timelines provided for in the Rules. In this case, the applicant says that he got the court’s ruling in July 2010. Even assuming that is so, he ought to have filed the notice of appeal shortly thereafter or have very good reasons for not doing so. His notice of appeal was lodged on 5th October 2011 which was still nine (9) months later. His explanation that the respondent had filed other applications in the same file does not hold water because that could not have stopped him from filing this application. The insufficiency in the explanation and the delay fortifies the respondent’s submission that this application was only filed as an afterthought …..
The reason for delay has not in my view been sufficiently explained. The delay was inordinate and the applicant is therefore, guilty of laches. As the often cited doctrine of equity goes, “Equity does not aid the indolent”. The delay in this case is inexcusable and cannot be countenanced.’
15. The respondent further relied on the decision in Habo agencies Limited v Wilfred Odhiambo Musingo (2015)e KLR where Justice Waki JA stated:- ‘’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. It is true as submitted by Mr. Wambola that mistakes of counsel may be excusable.’’
16. The court taking into consideration the submissions of the parties and interested parties finds that a party who had instructed the advocate has sufficient reason to explain the delay based on a mistake of an advocate. The court finds that the same counsel who represented the claimant applied and obtained a certificate of delay meaning at all material times he was acting on instructions. The cited authorities of the Court of Appeal agreed that a mistake of the advocate was a sufficient cause to grant leave to appeal out of time as was the case herein. The court returns that there was no inordinate delay in applying for obtaining the certificate of delay.
17. On whether there was arguable appeal- the respondent submitted that taking into consideration the grounds of appeal and pages 15 and 16 of the judgment, that the applicant admitted he was assigned duties which he failed to perform leading to a patient escaping from the hospital and he was dismissed for negligence in performance of duty, there was no arguable appeal.
18. The court, on the issue of whether the draft memorandum of appeal disclosed an arguable appeal, is guided by the Court of Appeal in Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) (19 January 2024) (Ruling) where it was held that: “An arguable appeal is not one that must succeed and an applicant need not proffer a multiplicity of arguable points. One is sufficient. For a point to be arguable it needs merely to raise a bona fide point of law or fact sufficient to call for an answer from the respondent and is worthy of the court’s consideration.
33.Moreover, whereas such arguable points should ideally and conveniently be expressed in the form of a draft memorandum of appeal, there is no rule that it must be so. One can raise such grounds on the face of the motion and even in the supporting affidavit, as happened in this case.’’
19. The applicant in the draft memorandum of appeal raised the issue of judgment being based on CCTV footage which he contended was not adduced as evidence before the trial court to prove he was liable for the escape of the patient. That the CCTV footage was electronic evidence which was not adduced in compliance with the Evidence Act in sections 106 a and 106 b. The admissibility of evidence leading to finding him culpable was challenged.
20. The court holds that the appeal raises arguable points of law and facts as held by the Court of Appeal in Cabinet Secretary Ministry of Health v Aura & 13 others (Civil Application E583 of 2023) [2024] KECA 2 (KLR) (19 January 2024) (Ruling) (supra).
21. In the upshot, the Court finds it is in the interest of justice to allow the application and grant leave to the applicant to file an appeal out of time.
22. The applicant is granted leave to file a memorandum of appeal together with the record of appeal within 30 days of this Order. Mention on 15th January 2025 to confirm the filing of the appeal and issue hearing directions.
23. Each party to bear its own costs in the application.
24. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18th DAY OF NOVEMBER 2024.