Gichohi v Uhuru High Way Development Ltd & 2 others (Civil Appeal (Application) 60 of 2017)  KECA 1390 (KLR) (16 December 2022) (Ruling)
Neutral citation:  KECA 1390 (KLR)
Republic of Kenya
Civil Appeal (Application) 60 of 2017
HA Omondi, KI Laibuta & PM Gachoka, JJA
December 16, 2022
Hezekiah W. Gichohi
Uhuru High Way Development Ltd
Central Bank of Kenya
Libyan Arab African Investoment Co. Ltd t/a Grand Regency Hotel
(Being an application for extension of time within which to file and serve a record of Appeal against the Ruling and Decree of the High Court of Kenya at Nairobi (J. W. Mwera, J.) made on 12th May, 2010 In Nairobi HCC No. 292 of 2008)
1.The applicant, Hezekiah W Gichohi, sued the respondents in Nairobi HCCC No 292 of 2008 seeking numerous declarations, prohibitory orders and other reliefs as specified in his plaint dated July 3, 2008.
2.The respondents separately applied to strike out the applicant’s suit vide 3 Chamber Summons dated July 30, 2008, November 4, 2008 and May 20, 2009.
3.In its ruling delivered on May 12, 2010, the High Court (JW Mwera, J) allowed the respondents’ applications and struck out the applicant’s suit with costs to the respondents.
4.Aggrieved by the ruling of the learned Judge, the applicant filed a notice of appeal on May 26, 2010, but took no further steps until March 21, 2017, almost 7 years later, when he filed an application for extension of time to file and serve the record of appeal vide his Notice of Motion dated March 20, 2017. He also prayed that the record of appeal filed on March 6, 2017 and served on the respondents on March 8, 2017 be deemed as having been duly filed and served.
5.The Motion was supported by the applicant’s affidavit sworn on March 20, 2017. According to the applicant, the application was made without unreasonable delay; that the delay was attributable to his former advocates, who collected the certified copies of the proceedings on August 16, 2012 together with the certificate of delay; that it was not until March 1, 2017 when he discovered that his former advocates, M/s. Kinoti Kibe and Company, then on record had obtained the proceedings and certificate of delay; that he filed the record of appeal on March 6, 2017 and served the same on the respondents on March 8, 2017; that the applicant should not be made to suffer from mistake of his counsel; that the intended appeal had a good chance of success; and that the respondents would not suffer any prejudice by grant of the orders sought
6.The respondents successfully opposed the application, which was dismissed on October 26, 2018 with costs to the 2nd and 3rd respondents. In his ruling, DK Musinga, JA. found that the applicant’s delay in filing and serving his record of appeal was inordinate and unexplained, and that it was not enough to show that the intended appeal was arguable.
7.Dissatisfied with the ruling of Musinga, J., the applicant comes on reference to a full bench pursuant to Rule 57 of the Court of Appeal Rules, 2022. His written request for a reference to the full bench is dated October 30, 2018 in compliance with the timelines prescribed in Rule 57(1) (b), which reads:
8.Learned counsel for the applicant, M/s Gacheru Ng’ang’a and Company, filed written submissions dated October 27, 2022 citing 5 judicial authorities to back his foundational submission that a client should not suffer from the mistake of his counsel. Other decisions focused on the circumstances under which a full bench may interfere with the decision of a single judge, and that there is no set rule as to what constitutes inordinate delay. He urged us to allow the reference as prayed.
9.In response, learned counsel for the 2nd respondent, M/s Oraro and Company, filed their written submissions dated November 1, 2022. Counsel cited 3 authorities to support their proposition: that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court (see County Executive of Kisumu vs County Government of Kisumu and 8 Others  eKLR); that a plausible and satisfactory explanation for the delay is the key that unlocks this Court’s flow of discretionary favour (see Ezekiel Mwenja Ngure vs Sammy Kipkorir Seroney and 3 Others  eKLR); and that, in the absence of any explanation, the Court is unable to tell what caused the delay and, where no explanation for delay is given, it cannot be assumed that any exists (see Wakaba Ndegwa and Another vs Lucy Nyaguthii  eKLR).
10.The main question before us is: do the circumstances of this case justify interference with the impugned decision of Musinga, JA? We do not think so. The applicant’s submission that the delay was not inordinate; that he should not suffer from the mistake of his counsel; and that the respondents stand to suffer no prejudice by a grant of the orders sought, do not hold.
11.In Kenya Co-Operative Creameries Ltd vs Fims Ltd  eKLR, the Court of Appeal held:
12.We find nothing on the record as put to us to suggest that the learned Judge misdirected himself in any of the matters falling to be considered; or that he arrived at a wrong decision; or that he was wrong in exercise of his unfettered discretion. In our considered view, the learned Judge correctly exercised his discretion, and his decision was by no means a misjustice.
13.In Simeon Okingo & 4 others vs Benta Juma Nyakako  eKLR, this Court set out the considerations to be made by the full bench in the following words:
14.Finally, we hasten to point out that alleged mistake of counsel does not of itself cure the litigant’s own inaction. Moreover, it is a litigant’s case and not that of his counsel. The primary responsibility to act within the prescribed timelines under this Court’s Rules rests heavily on the litigant’s shoulders. With regard to the responsibility of the litigant to follow up their case, Waki, JA had this to say in Habo Agencies Limited vs Wilfred Odhiambo Musingo  eKLR:
15.Having carefully considered the applicant’s reference, the rival written and oral submissions of learned counsel for the parties, the cited authorities in the backdrop of this Court’s Rules, we reach the inescapable conclusion that the applicant’s reference fails and is hereby dismissed. Accordingly, the ruling of Musinga, J. dated October 26, 2018 is hereby upheld. The costs of this reference shall be borne by the applicant. Orders accordingly.Dated and Delivered at Nairobi this 16th day of December, 2022.H. OMONDI............................................JUDGE OF APPEALDR. K. I. LAIBUTA..................................JUDGE OF APPEALM. GACHOKA – CI Arb, FCIARB...........................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR