Henry Kirimi Mathiu v Francis Mwongela [2014] KEHC 3828 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. CASE NO. 8 OF 2014

HENRY KIRIMI MATHIU……………....…….…………….APPLICANT

VRS

FRANCIS MWONGELA …………….…………..………RESPONDENT

R U L I N G

1. The Applicant Henry Kirimi Mathiu through a Notice of Motion dated 14^th February, 2014 pursuant to Section 79 a of the Civil Procedure Act seeks court’s leave to file  an appeal out of time against the judgment of Hon. Mr. Gichimu (Ag. Senior Principal Magistrate) Tigania Law courts, in Tigania PMCC 74 of 2012.   The Application is based on the grounds on the face of the Notice of Motion and Supporting Affidavit by the applicant dated 14^th February, 2014 and 9^th April, 2014.  This application is opposed by the Respondent who filed a Replying Affidavit dated 29^th May 2014.

2. When the application came up for hearing Mr. Ayub Anampiu learned Advocate appeared for the Applicant whereas Mr. M. Kariuki, learned Advocate appeared for the Respondent. 

3. The court has carefully perused the proceedings, the parties opposing positions and their respective submissions.  The issue for determination is whether the Applicant has met the conditions to enable court exercise its discretion to extend time for filing an appeal out of time.
4. The instant application is premised under Section 79 (G) of the Civil Procedure Act which provides:

79(G) “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”.

5. The Applicant did not file any affidavit but his Advocate filed two affidavits in support of the applications in which he has deponed that the suit was heard and dismissed on 8^th November, 2013 and after dismissal the Counsel tried by all means to contact the Applicant through his cell phone, but failed to get answer to his calls.   That on 6th November, 2013, which incidentally was 2 days before judgment, the Counsel deponed is when he finally got through to the Applicant.   The applicant informed him that he was so depressed of dismissal of the case since the deceased was his only child and he was unable to give him instructions due to the confusion.   The Counsel goes on to state without disclosing when he was eventually given instructions that he drew a memorandum of appeal and presented the same on 9/12/2013 to the registry which rejected the same as it was not accompanied by the proceeding and copy of the judgment. 

6. He averred that he was advised to avail copy of the judgment.  The counsel applied for the proceedings on 10th December, 2013 as per annexture Ak2 (a) and AK 2 (B).   He further  in his affidavit contended that the only typist in Tigania Law Court was on leave and resumed typing on 20^th January, 2013, (another error may be on date as the following 20^th of January, should have been in 2014 and not 2013).  The Advocate deponed that the proceedings were not supplied till 12^th February, 2014 in his affidavits 14^th February, 2014.

This affidavit for 9^th April, 2014 he deponed that the proceedings were ready and were supplied to him on 3^rd February, 2014 I note with a lot of concern that the obvious contradiction regarding as when the proceeding were supplied to the Advocate and note that the counsel was not diligent enough and he made serious errors in his affidavit.

7.  The Respondent in opposition to the application has deponed that the applicant’s application I frivolous, scandalous, vexatious, and is without merits.   The Respondent contended the application is incompetent by reason of the affidavit having been sworn by counnsel instead of the applicant as it is on the issue of fact from which Counsel is debarred from deponing upon and the same shuld be struck out. The respondent further averred that the applicant has not given any good or sufficient reason on cause for his failure to file appeal within the legally stipulated period.  The Respondent further stated the application is full of untruths and that there is no evidence that the memorandum of appeal was rejected for failure to avail a copy of proceedings as alleged by the applicant’s Counsel.   The Respondent therefore prayed that the Applicant’s application be dismissed.
8.   Section 79 G of Civil Procedure Act provides 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.  In the case of Wesike Vs Swala (1984) E.A. 591 Court of Appeal at Nairobi held that an applicant in application for  extension of time to file appeal must show in descending scale of importance, the following follows:-
   1.  That there is merit in the appeal
   2.   That the extension of time is to institute limited and/or file the appeal will not cause undue prejudice to the respondent and
   3.  That the delay has not been inordinate.

9. In the instant application the Applicant has not sworn any affidavit but the affidavit has been sworn by the counsel, which practice this court is of the view, is not a good practice for a counsel to purport to swear an affidavit on behalf of his client on matters of fact and not on matters of law; however, in the interest of  doing justice to all parties in this application the court shall not strike the Counsel affidavit but shall consider it in support of the application. 
10.  The Applicant’s Counsel from the facts of his two affidavits is clear that he was not diligent enough to put in correct facts or he opted to mislead the court to cover his failure in acting as instructed.  The counsel deponed that he got his client on 6^th November, 2013 when he was able to give him instructions, however he further averred that he got instructions on a day he does not disclose and drew a memorandum of appeal which he presented to court on 9^th October, 2013 but was rejected as it had no proceedings.  This court do not accept the counsel explanation as it is not a legal requirement, that a Memorandum of Appeal be accompanied by proceedings.  The Counsel did not upon receipt of instructions on a day he did not disclose apply for the proceedings till the time for filing appeal had elapsed.   The Counsel did not file the present application till after either 21 days or 12 days depending on which date one takes a date of receipt of the proceedings.  The counsel has no ground and sufficient explanation for delay in applying for the proceedings in time and for failing to act diligently.
11. The mistake or error in pursuing necessary documents to enable applicant appeal in time are due to the mistakes of the Counsel.  In the case of Murani   Vs Murani ( No. 4) (1982) KLR 38 Madan JA (as he then was) said on pp 47 – 48.

“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.  It is no less pardonable because it was committed by senior counsel though in the case of Junior Counsel the court might feel compassionate more readily.  A blunder on a point of law can be a mistake.  The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify if it the interests of justice so dictate.”

12. I have perused the memorandum of appeal of the ground  raised which I note are weighty and note there is merit in the Applicant’s appeal  as per draft memorandum of appeal.  The extension of time to file appeal out of time will not cause any prejudice to the Respondent.   The delay since the proceedings were applied for and supplied is not inordinate, however I noted the same was caused due mistake or lack of diligence on part of the counsel through who ought to have been more diligent and swift should not be used to deny the Applicant, who is not an expert in law and who relied on the experience of the Counsel, suffer damages by being denied his application on Counsel’s mistakes.  In the interest of justice and in the spirit of Article 50 of the Constitution denying this application would amount to  denying the Applicant fair hearing.   I am of the view that the delay was caused by the Counsel and notwithstanding that it is not explained, in the best interest the applicant is granted leave to appeal out of time and ventilate  his case to its highest level of litigation so that he can be satisfied justice has not any been to be done but is done.

13.  In view of the findings, that I have so far made the only logical inference that can be made is that either the applicant was not serious in pursuing the intended appeal or that his counsel was negligent and made obvious mistakes and /or errors in pursuing the matter.   This being a claim for damages arising out of a fatal accident the applicant and his counsel ought to have known the consequences of not applying for proceedings in time.   It is as pointed out hereinabove that it is well settled law that mistake of Counsel ought not to be visited on an innocent client.   Consequently, for the reasons stated in this ruling, I am inclined to allow the instant  application with an order that the Respondent gets  costs of KShs.20,000/= of this application which shall be personally borne by the Counsel for the applicant within the next 45 days from today.   The Appeal be filed within the next Fourteen (14) days from the date of this ruling.

DATED, SIGNED AND DELIVERED AT MERU THIS 9^TH DAY OF JULY, 2014

J.A. MAKAU

JUDGE.

Delivered in open court in the presence of:

Mr. A. Anampiu for applicant

Mr. M. Kariuki for Respondent

J.A. MAKAU

JUDGE