1.The applicants herein vide an application dated 22nd February, 2023 seek the following orders;
2.The 2nd applicant swore an affidavit in support of the application where he depones that the trial court delivered its judgement in PMCC No. 73 of 2018 dismissing their claim whereupon he instructed the firm of D.O.E Anyul to file an appeal against the decision on the same day. That the said form wrote to the trial court’s registry for certified copies of the proceedings which were eventually obtained but the time within which to lodge an appeal had lapsed. That the Covid-19 outbreak worsened their business and they could not therefore instruct counsel to proceed with the instructions to appeal.
3.The 2nd applicant depones that on 28/10/2022, the respondent’s counsel wrote to their counsel seeking access to funds held in a joint account and if execution proceeds then it will render the success of the intended appeal strenuous and burdensome. He depones that the respondent will not suffer any prejudice by the grant of the orders sought as there is adequate security in the joint account.
4.The respondent opposed the appeal 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who depones that the applicants filed similar applications dated 11th January, 2021 and 11th July, 2021 which were withdrawn after extensive progress had been made towards disposal of the said applications.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 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 the court is properly vested of jurisdiction. They rely on Safaricom Ltd Vs Ocean View Beach Hotel Ltd & 2 others Civil Application No. 327 of 2009 (UR) and Africa Eco-Camps Limited Vs Exclusive African Treasures Limited (2014) 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 counsel and which mistake ought not to be visited on them. On this issue, counsel cites; Tana & Athi Rivers Development Authority Vs Jeremiah Kimigho Mwakio & 3 others (2015) eKLR and Martha Wangari Karua vs 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 Vs Net Plan East Africa Ltd (2018) eKLR that the trial court’s dismissal of the suit amounted to grave miscarriage of justice since the applicants supplied building and construction materials to the respondent and a refusal to review and or set aside the impugned judgement 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 by the respondent that indeed the applicants had 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 Vs Kumba Ole Ntamorua & 4 others- Civil Appeal No. 256 of 2012-Nrb.
11.The respondent on the issue of whether the applicant has established grounds for the orders sought submit 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 the said 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 (2003) eKLR, County Executive of Kisumu Vs County Government of Kisumu & 8 others-(2017) 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.
Analysis and determination.
14.The 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 taken into account when determining whether or not to grant leave to appeal out of time.
16.In Mombasa County Government —Vs- Kenya Ferry Services & anor (2019) 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 on the alleged laxity by the subordinate court’s registry staff in furnishing them with the typed proceedings and judgment, the strained cash flow in their business due to the effects of the global Covid-19 pandemic and lastly on mistake of counsel who was then 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 costs if the application is disallowed.
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 (2014) 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 that a party may not be entirely to blame for the judicial staff who delay in preparing typed proceedings, I also find the applicants have been economical with information such as the date when the proceedings were availed 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 vs 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 the joint account.
26.I have considered the rival submissions of the parties applicants and 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 no plausible explanation has rendered.
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 the said declaration. Even after that declaration, there has been 3 years of inertia on the part of the applicants.
28.I therefore find this excuse to be a scapegoat for the applicant’s delay and is not sufficient ground to be considered for enlargement of time to lodge an appeal.
29.For the above reasons, I find that the application for leave to lodge an appeal out of time has not been sufficiently proved and on the account of time alone, I decline to grant the orders.
30.The other reasons 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 assessed at ksh 15000.
DELIVERED, DATED AND SIGNED AT KISUMU THIS 19TH DAY OF JULY 2023MWANAISHA. S. SHARIFFJUDGEIn the presence of:Mr Ochieng Otieno holding brief for Mr Amondi for the applicantsMr Sala for the Respondent