Moses Odero Owuor & 2 others v Andronico Otieno Anindo [2013] KECA 75 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  F. AZANGALALA J.A (IN CHAMBERS)

CIVIL APPLICATION NO. 30  OF 2013

BETWEEN

MOSES ODERO OWUOR )                                                                                         

LAZARO OTIENO OWUOR) …....................................................... APPLICANTS

WALTER OGARA OWUOR)                                                                                      

AND

ANDRONICO OTIENO ANINDO ….............................................. RESPONDENT

        (Being an Application for leave to enlarge time for filing of an Appeal against the Judgment

          of (Musinga J.) dated 16th September 2011, albeit delivered on 30th day of September 2011 by                     (Makhandia J.)

KISII HCC NO. 106 OF 2008

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RULING

       This is an application for extension of time brought mainly under Rule 4 of this Court's Rules.  The applicants, Moses Odero Owuor, Lazaro Otieno Owuor and Walter Ogara Owuor seek one primary order that this Court do extend time within which to lodge an appeal.  The application is supported by the grounds set out in the body of the application.  It is also supported by an affidavit sworn by Cephas Agure Odero, the applicants' advocate.

       In his submissions before me, Mr. Odero, the learned counsel for the applicants explained that the judgment intended to be challenged was delivered in the absence of the applicants and their counsel and further that no notice of entry of judgment was served.  He also attributed the delay to the length of time it took to type proceedings.  In the premises, counsel contended that the delay in filing the appeal was not deliberate.  In any event, according to counsel, the respondents will suffer no prejudice if the application is allowed.  In a bid to show that the intended appeal had high chances of success counsel referred me to the grounds of appeal in the draft memorandum of appeal annexed to the affidavit in support of the application.  To buttress his arguments, counsel invoked the decisions of single judges of this Court in Delphis Bank Ltd -Vs- Recco Builders Ltd & Another [2005] 2 KLR and Nyeri Wholesalers Limited -Vs- Kasturi Limited [Civil Appl. No. NAI 261 of 2010] (UR)

       Mr. Oguttu, the learned counsel for the respondent, has opposed the application on four main grounds: that the applicants have not sought leave to file a Notice of Appeal out of time which is a prerequisite to the mounting of an appeal; that the applicants have deliberately misrepresented facts; that the applicants have based their application on falsehoods and that the delay in filing the application is inordinate and has not been explained.  In support of his submissions, Mr. Oguttu invoked the decisions of single Judges of this Court in three cases:-

Hezekiah Michoki -Vs- Elisaphan Onyancha Ombongi [Court of Appeal Civil Application No. Nai 212 of 2008] (UR), Mwangi -Vs- Mwangi [1999] 2 EA 235 and Pan African Paper Mills (EA) Ltd -Vs- Olako [2001] KLR8.

       I have now considered the material placed before me by both sides and the submissions of counsel appearing.  Having done so, I take the following view of the matter.  As it has been stated in many decisions of this Court, Rule 4 of this Court's Rules gives this Court unfettered discretion in granting or refusing to extend time.  In Pothiwalla -Vs- Kidogo Basi Housing Co-operative Society Ltd & 31 Others [2003] KLR 733, the case of Muchugi Kirigo -Vs- James Muchugi Kirigo & Another [Civil App. No. NAI. 356 of 1996] was cited in which the Court stated with respect to the discretion exercised under Rule 4, as follows:-

“Lastly we would like to observe that the discretion granted under rule 4 of the Rules of this Court to extend the time for lodging an appeal, is as is well known unfettered and is only subject to it being granted on terms as the Court may think just.  With this context, this Court has on several occasions granted extension of time on the basis that an intended appeal is an arguable one and that it would therefore be wrong to shut an applicant out of court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances inexcusable and that his opponent was prejudiced by it.”

       In the present application it is apparent that the dispute between the parties revolves around LR No. South Sakwa/Waware/1017.  I have perused the proposed memorandum of Appeal and I would not wish to express any concluded view on whether the appeal will succeed but suffice it to say that the intended appeal is arguable.

       There are however other conditions that should be satisfied in order to grant the extension sought.  These have been stated in many decisions of this Court including the case of Leo Sila Mutiso -Vs- Rose Hellen Wanguri Mwangi [Civil Application No. Nai 251 of 1997] (UR) which was cited with approval in the case of Nyeri Wholesalers Limited -Vs- Kasturi Limited [Civil Appl No. 261 of 2010] (UR) In the Mutiso case it was stated:-

“It is now well settled that the decision whether or not to extend 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.”

       However, the list is not exhaustive and each case is considered on the basis of it's own facts and peculiar circumstances.

       With regard to delay, it is common ground that the judgment intended to be challenged was delivered on 30th September, 2011.  This application was lodged on 30th August, 2013.  Prima facie, the delay involved is of nearly two years.  This, in my view is certainly inordinate delay by any standards.  The explanation proferred by the applicants is that neither their counsel nor they themselves were served with a notice of entry of judgment with the result that they could not lodge their appeal in time.  The averment of counsel in the supporting affidavit would suggest that the applicants became aware of the judgment to be challenged on 24th February, 2012.  The applicants' explanation flies in the face of the averments made and documents availed by the respondent.  Those averments and documents are in a replying affidavit sworn by the respondent.  Annexed to that affidavit are no less than seven (7) exhibits.  Annexture AOA 3 is a Notice of Appeal which was lodged by the applicants on 28th October, 2011 but was dated 5th October, 2011.  Annexture AOA 5 is a Notice of Motion dated 20th July, 2012 lodged by the respondent which sought inter alia, the striking out of the applicants' Notice of Appeal aforesaid.  Annexture AOA 6 is a ruling of this Court which struck out the said Notice of Appeal and a record of appeal which was filed on 28th October, 2011 by the applicants.

       The authenticity of the above annextures has not been denied by the applicants.  In the event, it is clear that the applicants have not been candid with the explanation for the delay in filing their appeal.  If the applicants filed a Notice of Appeal and a record of Appeal on 28th October 2011, they cannot say they became aware of the Judgment on 24th February, 2012.

       It is further obvious that the applicants' earlier Notice of Appeal and record of appeal, about which they said nothing in this application, were struck out on 17th May, 2013.  This application was lodged on 30th August, 2013.  That delay is of about 3 ½ months.  It has not been explained at all by the applicants.

       As Shah, JA (as he then was) said in Mwangi -Vs- Mwangi (supra):-

“The burden lies on the party seeking favourable exercise of courts' discretion to place some material before the Court upon which such discretion may be exercised.”

                    The applicants herein have not placed sufficient material before me upon which I should exercise my unfettered discretion in their favour.  They have compounded the matter by deliberately failing to disclose that their previous Notice of Appeal and record of appeal were struck out.  They have further not explained the delay to file their application immediately after their earlier documents were struck out.  The applicants' conduct disentitled them from the exercise of the Court's discretion in their favour.

                    In the result, I decline to exercise my discretion in the applicants' favour.  Accordingly the application is dismissed with costs.

                    Order accordingly.

        Dated and Delivered at Kisumu this 20th day of December, 2013.

F. AZANGALALA

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JUDGE OF APPEAL

          I certify that this is a true

copy of the original.

DEPUTY REGISTRAR