IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OTIENO-ODEK JA (IN CHAMBERS)

CIVIL APPLICATION No. 139 of 2018

BETWEEN

NJERI NJOROGE ..............................................................................APPLICANT

AND

JOSEPH MAINA GICHUHI......................................................1st RESPONDENT

MAINA RUKUNGU .................................................................2nd RESPONDENT

(Being an application for leave to file an appeal out of time against the judgment and decree of Environment and Land Court at Thika (Gacheru ,J.) dated  2nd March 2018

in

ELC Case No. 122 of 2017 formerly NRB. HCCC No. 233 of 2015)

**************************

RULING

1.  By Notice of Motion dated 9th May 2018, the applicant has moved this Court for leave to file the Notice of Appeal out of time. The ground in support of the application as detailed on the face thereof is that the advocate presently on  record  was  instructed  to  act  for  the  applicant  after  the  impugned judgment was delivered; the previous advocate did not file a Notice of Appeal.

2.  At  the  hearing  of  this  application,  learned  counsel  Mr.  Kanyi  Kiruchi appeared for the applicant. There was no appearance for the respondents. Satisfied the firm of Njoroge Kugwa & Co. Advocates for the respondents was served with the hearing notice on 21st November 2018, this Court proceeded to hear the application for extension of time.

3. Counsel relied on the affidavit deposed by the applicant in support of the Motion. He submitted there was no inordinate delay in presenting the instant application; judgment was delivered on 2nd  March 2018 and the application was filed on 11th  May 2018; the application is approximately 45 days late from the date of impugned judgment.

4. In support of the application, it was urged the applicant was previously represented by the firm of Kiarie Joshua & Co. Advocates; without knowledge of the applicant, judgment was delivered on 2nd March 2018; the applicant deposes she was not present when judgment was delivered but her previous counsel was present in court; she was later informed the outcome of the case but this was after the 14-day period had lapsed; her previous advocate informed her she was to facilitate survey on LR No. Chania/Ngorongo/633 and that the respondent was entitled to ¼ acre out of the larger portion of LR No. Chania/Ngorongo/633. Upon being informed the details of the judgment, the applicant was aggrieved and decided to appoint a new firm of advocates namely Kanyi Kiruchi & Co. Advocates; that failure to file and lodge the Notice of Appeal was due to factors beyond her control; there has been no inordinate delay after the new advocate was instructed; and there is no prejudice to the respondents if leave to extend time is granted.

5.   Counsel for the applicant cited the case of  Athumani Nusura Juma vs. Afwa Mohamed Ramadhan (2016) eKLR to support the proposition that it is an excusable delay if all parties are confused or not aware of the date of judgment.    The  case  of   Imperial  Bank  Limited  (In  Receivership) vs. Alnashir Popat & 18th Others (2018) eKLR was also cited.

6.  I  have  considered  the  Notice  of  Motion  dated  9th   May  2018  and  the supporting affidavit thereof. I have also considered the authorities cited by the applicant. The case of  Athumani Nusura Juma vs. Afwa Mohamed Ramadhan  (2016) eKLR is  distinguishable  as all parties  in  the instant matter had knowledge of the date of judgment.   It is conceded by the applicant that she was represented by counsel on the date of delivery of the impugned judgment.

7. An  application  for  extension  of  time  must  be  made  timeously  without inordinate delay. In  Charo   vs. Mwashetani & 3 Others (2014) KLR- SCK, the Supreme Court in considering an application for extension of time stated:

8.  In  Nicholas Kiptoo Arap Korir Salat vs. The Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court aptly captured the circumstances to be considered in an application for extension of time. The Court stated:

“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.

“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:

1.  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;

2.  a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court;

3.  whether the Court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;

4.  where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;

5.  whether there will be any prejudice suffered by the respondents, if extension is granted;

7. whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied].

8.  In  the  instant  application,  the  issue  for  my  consideration  is  whether  the applicant has offered sufficient explanation for delay between 2nd  March 2018 when the impugned judgment was delivered and 11th May 2018 when the application for extension of time was filed. In  Bernard Kibor Kitur vs. Alfred  Kiptoo  Keter  &  another  [2018]  eKLR,  the  Supreme  Court expressed that when considering an application for extension of time, the Court considers whether there are any extenuating circumstances that would allow it to exercise its unfettered jurisdiction to extend time.

9. The applicant in explaining the delay has urged that she was not present when the impugned judgment was delivered and when she learnt of the same, she opted to instruct another counsel to lodge an appeal against the judgment; that when the new advocate took instructions the 14-day period for filing the Notice of Appeal had lapsed.

10.  In  Abdul Aziz Ngoma  vs. Mungai Mathayo [1976] Kenya LR 61, 62, this Court said:

“We would like to state once again that this Court’s discretion to extend time under rule 4 only comes into existence  after  ‘sufficient  reason’  for  extending  time  has been  established  and  it  is  only  then  that  other considerations such as the absence of any prejudice and the prospects or otherwise of success in the appeal can be considered.”

11. I have considered the explanation by the applicant. The supporting affidavit does not indicate the date when the previous advocate on record informed the applicant the outcome of the impugned judgment; all that is deposed is that when the applicant was informed it was after the 14-day period had lapsed. There is an averment in the supporting affidavit that the new advocate on record was instructed on 14th April 2018; there is also an annexed consent recorded before the trial court between the applicant’s former and present advocates dated 17th  April 2018 allowing the current advocate to represent the applicant. Notwithstanding the consent, there is no explanation for the delay  between  14th    April  2018  and  11th    May  2018  when  the  instant application was filed. There is no affidavit by the present counsel explaining the delay of about 27 days from the date of receipt of instructions.

12. The  issue  is  whether  the  delay  of  45  days  is  inordinate  and  if  there  is sufficient explanation for delay. Whether or not to grant extension of time depends on circumstances of each case. There is no limit to the number of factors that a court should consider in an application for extension of time, so long as they are relevant. Some of the factors to bear in mind include the period  of  delay;  the  reason  for  the  delay;  the  degree  of  prejudice  the respondent stands to suffer; justice should be administered without undue regard to procedural technicalities and that justice should not be delayed.

(See   Abdulkadir   Athman   Salim   Elkindy   vs.   Director   of   Public Prosecutions & another [2018] eKLR)

13.  In the instant matter, the applicant explains the delay that she instructed a new  advocate  to  act  for  her.  In  Kenya  Industrial  Estates  Limited  vs. Samuel Sand & Another (2008) eKLR Deverrell, JA stated that there were "numerous decisions of this court stressing that lengthy delays resulting from mistakes of advocates should not always lead to dismissal of applications for extension of time.” In the instant matter, there is no mistake on the part of counsel, if any, the allegation is that the applicant was informed the outcome of the case by her previous advocate after the lapse of 14 days.

14.  In  Rajesh Rughan vs. Fifty Investment Ltd. & Another (2005) eKLR this Court held:

“It is not enough simply to accuse the Advocate of failure to inform as if there is no duty on the client to pursue his matter. If the Advocate was simply guilty of inaction that is not excusable mistake which the Court may consider with some sympathy.”

15.   In  Bains Construction Co. Ltd. vs. John Mzare Ogowe (2011) eKLR the court observed:

“It is to some extent true to say mistakes of Counsel as is the present case should not be visited upon a party but it is equally true when Counsel as agent is vested with authority to perform some duties and does not perform it, surely such principal should bear the consequences”.

16.  In   Habo  Agencies  Limited  vs.  Wilfred  Odhiambo  Musingo  (2015) eKLR, it was thus 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."

17. This Court in  Donald O. Raballa   vs.   Judicial Service Commission & another  [2018]  eKLR  when  considering  delay  and  inaction  by  a  new advocate on record expressed as follows:

“In our view, the new advocates of the applicant cannot be said to have faired any better than the previous advocates, and it is no wonder that the learned single Judge posed the pertinent hypothetical questions he did. According to the applicant, the advocates were instructed in October 2014 but did nothing on the matter until December 22nd when they made a draft of the application before us. They then waited until 15th January the following year to file it in court. Even assuming without deciding that time does not run for some functions of the court between mid-December and January, it is not argued that the court registries were closed and the filing of the application was impossible. This was not an ordinary matter. A judgment had been in existence unchallenged since 13th May, 2013. There was already a long delay caused by inaction by previous advocates. Surely in those circumstances, it behooved the new advocates to move with alacrity to save the situation before a court of equity. But no, they took their sweet time before drawing up the application and before filing it. We say they took their time because they have not sworn any affidavit to explain the inaction apparent in the matter.  In court, counsel appeared to tell us, not in so many words, that he was entitled to go on vacation because the court was also on vacation between 21st December and 15th  January! That is why he did nothing. A court of equity would frown on such conduct and we do not blame the single Judge for the findings he made”. (Emphasis supplied)

18.  It is a constitutional imperative and a rule of natural justice that each person has a right to legal representation and counsel of his/her choice. Founded on this constitutional underpinning, I find the explanation by the applicant that the delay of 45 days was due to her instructing another counsel a sufficient explanation. I am persuaded by dicta in  Richand Velji Shah & 3 Others vs. Victor Maina Ngunjiri ELC 359/200 where it was expressed delay caused by administrative lapses in the process of change of advocates is a sufficient explanation of delay. In this matter, I note there is no affidavit by the new advocate on record explaining the delay between 14th  April 2018 and 11th May 2018 when the instant application was filed.   However, given the sufficient explanation and taking into account the period of delay is about 45 days, I find the delay is not inordinate.

19.   Accordingly, I exercise my discretion and allow the Notice of Motion dated 9th   May  2018.  Leave  be and  is  hereby  granted  extending  time  for  the applicant  to  file  and  serve  the  Notice  of  Appeal  against  the  judgment delivered by the ELC court on 2nd March 2018 in ELC Case No. 122 of 2017 formerly Nairobi Civil Appeal No. 233 of 2015. The Notice of Appeal is to be filed and served within 14 days of the date hereof. The record of appeal is to be served within 21 days of service of the Notice of Appeal. There shall be no order as to costs.