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Mbuthu v Gitau & another (Civil Application 319 of 2019) [2021] KECA 239 (KLR) (Civ) (3 December 2021) (Ruling)
Neutral citation number: [2021] KECA 239 (KLR)
Republic of Kenya
Civil Application 319 of 2019
DK Musinga, RN Nambuye & HM Okwengu, JJA
December 3, 2021
Between
Naomi Wanjiru Mbuthu
Applicant
and
Bernadette Murugi Gitau
1st Respondent
Rose Murugi Macharia
2nd Respondent
(Being a reference under Rule 55 of the Court of Appeal Rules from the Ruling of (F. Sichale, JA.) dated 8th May 2020 in an application for extension of time to file an appeal out of time against the Judgment of the High Court of Kenya at Nairobi (Musyoka, J.) dated 29th September, 2017 in Succession Cause No. 2070 of 2011)
Ruling
1.This is a reference to the full Court, under Rule 55 of the Court of Appeal Rules, from the decision of a single Judge of this Court (F. Sichale, J.A.) dated 8th May, 2020. The learned single Judge’s ruling was made pursuant to a notice of motion application dated 30th September, 2019. It was brought substantively under Article 159 of the Constitution of Kenya, 2010, sections 3, 3A, and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules. The motion sought leave of the court to extend time within which to file and serve both the notice and the record of appeal out of time against the judgment of the High Court of Kenya at Nairobi in Succession Cause No. 2070 of 2011 (Musyoka, J.) dated 29th September, 2017 together with an attendant order for any such further orders the Court may deem fit and convenient to grant.
2.The application was supported by grounds on its body and a supporting affidavit of Naomi Wanjiru Mbuthu the applicant together with annexures thereto.
3.The application was opposed by a lengthy replying affidavit sworn on 12th February, 2020 by Bernadette Murugi Gitau, the 1st respondent on her own behalf and on behalf of the 2nd respondent. The application was canvassed before the single Judge on 10th March, 2020 through oral submissions by learned counsel, Mr. Ondieki E. for the applicant and learned counsel, N. Kiagayu for the respondent. At the conclusion of the oral submissions, the learned single Judge analyzed the record in light of the oral submissions of advocates for the respective parties made before him and declined to exercise her discretion in favour of the applicant for the reasons given in the impugned ruling to which we shall revert at a later stage of this ruling, triggering the reference under consideration before us.
4.The reference to the full bench was canvassed before us in the absence of learned counsel for the respective parties herein, and without oral or written submissions. All we have on record for our consideration are the contents of the applicants’ advocate communication to the Deputy Registrar of the Court, Ref. No. 00/NWM/05/19 dated 13th May, 2020 which we find prudent to reproduce the portion which in our view, contains what we believe are the grounds in support of the reference as hereunder:The reference has been contested also by the contents of the respondents’ communication to the Deputy Registrar of the Court dated 11th May, 2021 which we likewise reproduce the portion we believe contains a response to the applicant’s grounds as hereunder: “the applicant has failed to file and serve their submissions as directed thereby leaving the respondents stranded in the absence of any specific grounds of discontent expressed against the impugned ruling of Sichale, J.A, the respondents have nothing to respond to”,and prayed for the reference to be dismissed with costs to her.
5.In an application brought under Rule 4 of the Court of Appeal Rules, a single Judge is usually invited to exercise an unfettered discretion in the discharge of her mandate with regard thereto, that is to say without whim, caprice or sympathy See Githiaka vs. Nduriri [2004] 1 KLR 67.
6.Being guided as above, the approach we adopt in determining the reference is that taken by the Court in John Koyi Waluke vs. Moses Masika Wetangula & 2 Others, Civil Appeal (Application) No. 307 of 2009, (Unreported) wherein the Court stated inter alia as follows:
7.See also African Airlines International Ltd Vs Eastern & Southern African Trade & Development Bank (PTA BANK) [2003] KLR 140 at page 143, in which this Court made the following observation as regards exercise of judicial discretion:
8.The brief background to the application before the single Judge was that the applicant was aggrieved with the orders of Musyoka, J. dated 29th September, 2017 rejecting her affidavit of protest filed in the succession proceedings protesting the mode of distribution of the deceased's estate as proposed by the respondents who were co-administrators with the applicant. Instead of appealing against those orders, the applicant filed an application before the High Court seeking revocation and or annulment of the Certificate of Confirmation of grant issued by Musyoka, J. on 29th September, 2017. The respondents filed a Preliminary Objection (P.O). to that application, resulting in a ruling delivered on 5th July, 2019 by Onyiego, J. sustaining the respondents P.O.
9.Onyiego, J.’s advice in the ruling dated 5th July, 2019 that the applicant should have filed an appeal if aggrieved with the orders of Musyoka, J. of 29th September, 2017 is what prompted the applicant to file the notice of motion dated 30th September, 2019. The grounds proffered by the applicant in support of that application were, inter alia, that: her advocates then on record for her erroneously advised her to file an application for revocation and or annulment of the grant instead of filing an appeal and pleaded with the single Judge that the delay involved was not inordinate. She had also given plausible reasons for the delay. Ends of justice therefore demanded that the matter be reopened for her to resuscitate her intended appellate process; and that the sins of her advocate should not be visited against her.
10.In rebuttal, the respondents asserted that the delay of seven (7) months to the filing of the application for revocation and three (3) months to the filing of the application for leave was not only inordinate but was also unexplained. Second, it would be also highly prejudicial to them if the relief sought were granted considering that the prolonged litigation had prevented them from benefiting from their inheritance for close to over twenty (20) years.
11.The single Judge analyzed the record and applied thereto the threshold for exercise of the Court’s mandate under Rule 4 of the Court of Appeal Rules as succinctly restated by the Supreme Court in the Case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR; and expressed herself thereon as follows:
12.The Judge also took into consideration the case of Somportex Ltd vs. Philadelphia Chewing Gum Corporation [1968] 3 All ER 26; and the case of Mary Waruga Wokabi & 3 Others vs. Jacob Mwanto Wangora [2019] eKLR, both for the holdings/propositions that a party who has two procedures for seeking vindication open to him/her and elects to employ one of them cannot be allowed in law to fall back on the abandoned procedure after losing out on the one followed in the first instance.
13.Bearing the above exposition in mind, the Judge then expressed herself as follows:
14.Lastly on prejudice to be suffered by the opposite party, the Judge expressed herself thereon as follows:
15.On the totality of the above, the Judge concluded as follows:
16.The factors the single Judge was obligated in law to consider in the discharge of her and now this Court upon reference and which we fully adopt are those crystallized by the Supreme Court of Kenya decision in the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [supra].
17.On the length of the delay, the undisputed position is that the applicant took seven (7) months from 29th September, 2017 to erroneously file the application for revocation and or annulment and slightly over three months to 30th September, 2019 from 5th July, 2019, the date of the ruling of Onyiego, J. sustaining the respondent’s P.O. Cumulatively the period of delay from 30th September, 2017 when the intended impugned orders were made to 30th September, 2019 when the application for leave was filed and which the applicant was obligated in law to explain to warrant the exercise of discretion in her favour, a delay of two (2) years.
18.In George Mwende Muthoni vs. Mama Day Nursery and Primary School, Nyeri C.A No. 4 of 2014 (UR), extension of time was declined on account of the applicant’s failure to explain a delay of twenty (20) months. It is evident herein that the period of delay falling for consideration herein is far much in excess of the period that was under consideration in the above cited case. The applicant’s reprieve therefore lies in the success on the element of having given a plausible and therefore excusable explanation for the delay.
19.As already borne out by the reasoning of the single Judge, the applicant blamed her advocate for then erroneous advice on the procedure followed in seeking redress against the orders of Musyoka, J. of 30th September, 2017.
20.In the case of Owino Ger vs. Marmanet Forest Co-Operative Credit Society Ltd [1987] eKLR, among numerous others, the Court variouslydeclined to visit wrongs of advocates against clients in instances where there was sufficient demonstration that non-compliance with any prerequisites provided for in the applicable rules was due to client’s advocate’s fault. Falling of our determination therefore is issue whether the applicant demonstrated sufficiently before the single Judge and now before us on reference that the threshold in the Owino Ger case [supra] had been established. Our response to the above concern is in the negative.
21.Our reason for holding the above view is that all that the single Judge had before her was the mere allegation that the advocate was to blame for the wrong advise on the correct procedure to be followed to seek relief upon delivery of the intended impugned judgment, while before us all we have is applicant’s complaint in the manner the single Judge exercised her judicial discretion to decline the relief. No iota of evidence has been proffered to explain the delay. Neither was any effort made by the applicant or her advocates currently on record for her to source any affidavit from the alleged former advocate, or exhibit correspondences exchanged between them. We therefore find nothing to fault the single Judge for holding that the period of delay was not only inordinate but that it had also not been explained.
22.On the possible arguability of the intended appeal, the applicant relies on the annexed draft memorandum of appeal. We have perused the said grounds and find them arguable, bearing in mind that an arguable appeal need not be one which must necessarily succeed, but one which ought to be argued fully before the Court, one which is not frivolous. See the case of Joseph Gitahi Gachau & Another vs. Pioneer Holdings (A) Ltd. & 2 Others, Civil Application No. 124 of 2008. A single bona fidearguable ground of appeal is sufficient to satisfy this prerequisite. See the case of Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004.
23.Sustaining this factor per se does not entitle the applicant to relief as in our view, it is not meant to be considered as a stand-alone factor but in conjunction with all the other factors that fall for consideration for granting the relief sought, a position we shall revert to shortly after expressing ourselves on the last factor as hereunder.
24.On prejudice to be suffered by the opposite party, the respondents pleaded that the prolonged litigation herein has denied them enjoyment of their rights of inheritance to the deceased’s estate for close to twenty (20) years to which the applicant filed no rebuttal.
25.On the totality of our reasoning on the record as assessed above, we are in the circumstances satisfied that the learned single Judge acted within the parameters set in Mwangi vs. Kenya Airways Ltd (2003) KLR 486 at pp. 489 - 490 wherein this Court expressed itself thereon was that:
26.For the foregoing reasons, we are satisfied that the learned single Judge exercised her discretion in a judicious manner as was expected of her and as set out in the Shah vs Mbogo case [supra]. We have no basis for interfering with the learned Judge’s judicial exercise of discretion. We therefore find this reference devoid of merit and dismiss it with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF DECEMBER, 2021.D. K. MUSINGA, (P)....................................JUDGE OF APPEALR. N. NAMBUYE.....................................JUDGE OF APPEALHANNAH OKWENGU.....................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR
