1.The applicants herein vide an application dated 22nd February, 2023 seek the following orders;
2.The 1st applicant swore an affidavit in support of the application where he depones that the trial court delivered it’s judgement in PMCC No. 73 of 2018 whereat it dismissed their claim whereupon he instructed the firm of D.O.E Anyul & Co. Advocates to file an appeal against the decision on the same day. Pursuant to those instructions the said law firm wrote to the trial court’s registry requesting for certified copies of the proceedings which were eventually obtained way beyond the limitation period for lodging an appeal. Moreover the Covid-19 outbreak adversely affected their business therefore they could not instruct counsel to proceed with their earlier instructions of lodging an appeal.
3.The 1stApplicant further depones that on 28/10/2022, the respondent’s counsel wrote to their counsel seeking access to funds held in a joint account which demand if acceded to will render the success of the intended appeal a nullity. He deposes that the respondent will not suffer any prejudice by the extension of time to lodge their appeal as the judgment sum is already secured in the joint account of parties’ advocates.
4.The respondent opposed the application through a replying affidavit sworn by Joyce Omondi, the respondent’s principal who depones that the applicants filed similar applications dated 11th January, 2021 and 11th July, 2021 which were withdrawn after extensive progress had been made towards disposal of the said applications.
5.She depones that the applicants have already paid 90% of the respondent’s costs and what is remaining held in the joint account is paltry and cannot be adequate security in the intended appeal.
6.The parties filed their respective submissions in disposal of the appeal.
7.The applicants submit on the issue of jurisdiction that they have already filed a draft Memorandum of Appeal hence this court is properly vested of jurisdiction. They rely on Safaricom Ltd v Ocean View Beach Hotel Ltd & 2 others Civil Application No. 327 of 2009 (UR) and Africa Eco-Camps Limited v Exclusive African Treasures Limited  eKLR.
8.On the length of delay and the reason given thereto, it is argued that the same was occasioned by delay in processing copies of typed proceedings and thereafter the certificate of delay. It is also submitted the mistake was caused by the applicants’ former advocates and the same ought not to be visited upon them. On this issue, counsel cites; Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 others  eKLR and Martha Wangari Karua v IEBC Nyeri-Civil Appeal No. 1 of 2017.
9.On whether the applicants have advanced sufficient cause, it is argued based on the decision in Isaac Mugweru Kiraba t/a Isamu Refri-Electricals v Net Plan East Africa Ltd  eKLR. The applicants posit that the trial court’s dismissal of their suit amounted to grave miscarriage of justice since the applicants had supplied building and construction materials to the Respondent and a refusal to review or set aside the said dismissal would be an affront to the applicants’ rights as protected by Articles 10(2)(c) of the Constitution.
10.On whether the intended appeal is arguable, the applicants contend that there are issues worth determination by the court to wit; the effect of the dismissal on concept of suppliers to educational institutions and whether the trial magistrate erred by failing to take into account the admission made by the respondent that the applicants had indeed supplied it with construction materials. The authority in Kenya Tea Growers Association & another v Kenya Planters & Agricultural Workers Union-Civil Application No. 72 of 2001-Nrb, Kenya Railways Corporation v Edermann Properties Ltd Civil Appeal No. 176 of 2012-Nrb and Ahmed Musa Ismael v Kumba Ole Ntamorua & 4 others- Civil Appeal No. 256 of 2012-Nrb.
11.On the issue of whether the applicant has established grounds for grant of the orders sought, the respondent submits that the applicants have not explained the hinderance they faced from the year 2019 and or the delay of over 4 years.
12.It is submitted that the applicants filed 2 previous applications which the withdrew despite nearing conclusion and therefore had adequate time to pursue their earlier applications instead of withdrawing them only to later file a similar application.
13.The respondent’s assertion is supported by the following authorities; Thuita Mwangi V Kenya Airways Ltd  eKLR, County Executive of Kisumu v County Government of Kisumu & 8 others- eKLR, Nginyaga Kavole V Mailu Gideon- Misc. Application No. 401 of 2013 and Union Insurance Co. Of Kenya Ltd Ramzan Abdul Dhanji Civil Application No. 179 of 1998.
DIVISION - Analysis and determination.
14.The impugned judgement in this matter was delivered by the subordinate court on 20/11/2019 and the instant application filed on 22nd February,2023. This clearly means the applicants were out of time, though the law under Section 79G of the Civil Procedure Act accords such an applicant a window to lodge his appeal out of time. The Section states;
15.It is demonstrably clear that an appeal may be admitted out of time if the applicant advances satisfactory grounds for the delay. Case law has established a number of factors to be considered when determining whether or not to grant leave to appeal out of time.
16.In Mombasa County Government v Kenya Ferry Services & anor  eKLR, the Supreme Court held that;
17.Since the date of delivery of judgement in the subordinate court, the applicants should have filed their appeal within 30 days from 20/11/2019, however, as matters stand, the application was only filed on 22nd February, 2023, a period of over 3 years from the said period.
18.The applicants have attributed their delay to the alleged laxity by the registry staff in the subordinate court in furnishing them with certified proceedings and judgment, their firm’s cash flow decline due to the global Covid-19 pandemic and lastly on negligence of their former advocates on record.
19.These allegations have been disputed by the respondent who states that the delay is inordinate and that the security in terms of monies held in a joint interest earning account may not adequately liquidate it’s costs in the event the application herein is declined.
20.On the issue of the delay in obtaining certified copies of the proceedings, I find the decision in Hassan Nyanje Charo v Khatib Mwashetani and 3 Others  eKLR imperative. In that decision, the Supreme Court held;
21.In the instant application, there is an allegation that the letter bespeaking proceedings was sent to the registry on 13/12/2019, which proceedings were allegedly supplied way after the window for appeal had lapsed. However, the applicants have not stated when the same were availed.
22.In the circumstances, despite taking cognizance of the fact that a party may not be blamed for the laxity of judicial staff in preparation and supply to a party of the typed proceedings, I do find that the applicants have been economical with information on when the proceedings were supplied to them.
23.The other reason advanced for the delay is mistake of counsel such that it is alleged that the former advocated did not act with speed to lodge the appeal. It is trite law that mistake of counsel shall not visited on an innocent litigant.
24.The issue of mistake of counsel was discussed in Edney Adaka Ismail v Equity Bank Limited  eKLR, where the court declined to exercise its discretion simply because the Applicant claimed a mistake of counsel. In that matter, the Court held:
25.In the instant application, the applicants have alleged that they instructed counsel to pursue an appeal on their behalf. The letter stated above was drafted by counsel. There however is no evidence of the steps taken by the applicants to pursue the appeal until 16th January, 2023 when they were jolted into action by the respondent’s letter asking to be allowed access to the funds held in a joint account.
26.Having considered the applicants’ assertions on the same and the respondent’s, I do find that the applicants took no steps and or were indolent in having the matter proceed on appeal. The period from when the instructions for appeal were given up to the time of filing the instant application is inordinate and has not been explained well.
27.It is a matter of common public notoriety that Covid-19 pandemic was declared in Kenya in the month of March, 2020 while judgement was delivered approximately 4 months before that declaration. Even after the said declaration, it has been over 3 years since then with no tangible progress being shown to have been put in place by the applicants.
28.I therefore find this excuse to be a scapegoat for the applicants’ delay and is not sufficient ground to be considered for enlargement of time to lodge an appeal.
29.Premised upon the above reasons, I find that the application for leave to lodge an appeal out of time has not been sufficiently proved on the account of time alone and I thus decline to grant the orders sought.
30.The other ingredients to be considered when deciding such an application will serve no purpose if discussed herein.
31.Consequently, the application dated 22nd February, 2023 is without merit and is hereby dismissed with costs to the respondent which are assessed at Ksh 15,000.
32.This file is marked as closed