Case ID:166400

Maulid Magingi Mwabaraza v Sifa Investments Limited [2020] eKLR

Case Metadata

Case Number:

Miscellaneous Civil Application 256 of 2019

Parties:

Maulid Magingi Mwabaraza v Sifa Investments Limited

Date Delivered:

10 Nov 2020

Case Class:

Civil

Court:

High Court at Mombasa

Case Action:

Ruling

Judge(s):

Dorah O. Chepkwony

Citation:

Maulid Magingi Mwabaraza v Sifa Investments Limited [2020] eKLR

Court Division:

Civil

County:

Mombasa

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

MISC CIVIL APPLICATION NO.256 OF 2019

MAULID MAGINGI MWABARAZA....................................APPLICANT

VERSUS

SIFA INVESTMENTS LIMITED..........................................RESPONDENT

RULING

1. This is a

Ruling

in respect of the

Notice of Motion

application dated

17

th

May, 2019

and filed on

12

th

June, 2019

. It mainly seeks

Leave to Appeal

out of time.

2. From the face of the application, the main ground is that upon delivery of

Ruling

dated

22

nd

March, 2019

by the trial Magistrate, Hon. Kassam, the Applicant instructed his advocate to file Appeal but failed to file the same on time. As such the delay in filing the Appeal was occasioned by an advocate and the mistake of an advocate should not be visited onto the client.

3. The Application is supported by the Affidavit of

Maulid Magingi Mwabaraz,

the Applicant herein, sworn on

12

th

June, 2019

. He averred that on

22

nd

March, 2019

the Lower Court delivered a Ruling dismissing his application for Leave to admit the

Plaint

in the Lower Court.

4. Besides instructing his advocate to launch an Appeal, the advocate failed to do so and the mistake by his Counsel should not be visited on him.

5. He further averred that the delay is only about

30 days

and since the Appeal raises triable issues, the same should be allowed.

6. In his submissions, the Applicant argues that the Respondent had not participated in the proceedings and only entered appearance after the application seeking to admit the suit out of time was dismissed. As such the Respondent stands not suffer any prejudice that cannot be compensated by an award of damages.

7. In support of his submissions, the Applicant relied on the case of

J.G Builders…Vs…Plan International [2015]eKLR,

where it was reiterated that mistake of Counsel should not be visited on the innocent Litigant.

8. In response, the Respondent filed

Grounds of Opposition

dated

17

th

September, 2019

. The grounds are:

a) That the Application is ex Facie bad in law, mischievous, frivolous and utterly incompetent and should thus be struck out.

b) That the Applicant has not rendered any plausible explanation for the delay in filing an Appeal against the finding of the Learned Magistrate within the requisite time.

c) That the Applicant is thus guilty of laches and the court should thus not be inclined to exercise its discretion in favour of an indolent party.

d) That the dictates of justice and equity do not favour the court’s discretion in favour of the Applicant given his proclivity to seek extension of time to comply with the limitation period.

e) That the application should therefore be dismissed with costs.

9. In its submissions, the Respondent argued that the delay in filing the Appeal had been for a period of

2 months and 21 days

after the

Ruling

in the trial court and the Applicant is thus guilty of indolence.

10. According to the Respondent, the intended Appeal raises no arguable grounds since both the

Plaint

and the Application were filed out of time and cannot be cured as procedural lapse.

11. In response to the argument that the Appeal was not filed in time owing to mistake by the Counsel, it is submitted that the Applicant had a corresponding duty to ensure the Appeal was filed on time. That no evidence has been adduced to show that the Applicant made any efforts in ensuring the Appeal was filed.

12. Lastly, the Respondent submitted that it will be prejudiced since it will be made to incur litigation costs for suits which are already time barred. I have considered the plethora of authorities relied on by the Respondent in support of its submissions.

Analysis and Determination

13. After perusing all the pleadings filed in this case and the various submissions made by the parties herein as well as the authorities relied on, the main issue that came up is as to whether the delay in filing the Appeal has been explained.

14.

Section 79G

of the

Civil Procedure Act

deals with the time for filing Appeals from Subordinate Courts and states:

“

Every Appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the Decree or Order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the Decree or Order:

Provided that an Appeal may be admitted out of time if the Appellant satisfies the court that he had good and sufficient cause for not filing the Appeal in time.”

15. It is a well settled position in law and as buttressed by a long line of authorities by this Court that the decision of whether or not to extend time for filing an Appeal is an exercise of this Court’s discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whims or caprice. In general, the matters which a court takes into account in deciding whether to grant an extension of time are; the length of the delay; the reason for the delay; the chances of the Appeal succeeding if the application is granted; and the degree of prejudice to the Respondent if the application is granted.

16. It is noteworthy that the

Ruling

of the trial court was delivered on

22

nd

March, 2019.

This application was delivered on

12

th

June, 2019

although dated on

17

th

May, 2019

. The Application has therefore been filed

2 months and 21 days

after delivery of the

Ruling

and not 30 days as the Applicant alludes.

17. The Applicant has blamed his advocate for the delay in filing the Appeal and expressed the view that the mistake of his advocate should not be visited on him. In the circumstances of those allegations, there is no evidence that has been laid before the court to buttress the same. Much as the Applicant has attempted to shift the blame to his advocates who are still on record on his behalf, nothing has been exhibited to confirm that indeed the advocate failed to act as instructed. My view is that whereas litigants instruct Advocates to act for them, the cases belong to litigants and they have a duty to monitor the progress of their cases.

18.

Section 79G

of the

Civil Procedure Act

requires that before the Court enlarges the time for appealing the Applicant must satisfy the court that he had good and sufficient cause for not filing the Appeal in time. In the case of

Alibhhai Musajee…Vs…Shariff Mohammed Al-Bet Civil

Appeal No.283 of 1998

, the Court of Appeal held that whereas the

Civil Procedure Act

allows for extension of time for filing Appeal, if good and sufficient cause is shown, failure to act does not constitute a good or sufficient cause. Further in the case of

Berber Alibhai Mawji…Vs…Sultan Hasham Lalji & 2 Others [1990-1994] EA 337

, the court held that inaction on the part of an advocate as opposed to error of Judgment or a slip is not excusable.

19. I am therefore not satisfied that the delay or default on the part of the Applicant has been satisfactorily explained. However, this court is now mandated to exercise justice under

Sections 1A, 1B, & 3

of the

Civil Procedure Act

as well as

Article 159

of the

Constitution

. Justice is only done when a party is allowed to prosecute its case to the highest court. However, such discretion should be exercised while observing the competing interests of the parties.

20. In this case, I see no prejudice that will befall the Respondent is allowed to file the Appeal. I therefore issue the following orders:-

a) Time to file appeal is extended.

b) The Appeal be filed within 30 days from today.

c) Failure to comply with the directions above the extension orders for filing the Appeal will stand vacated.

d) The costs for this application are awarded to the Respondent since the delay in initiating the Appeal is by fault of the Applicant.

It is so ordered.

DATED, SIGNED

and

DELIVERED

at

MOMBASA

on this

10

TH

day of

NOVEMBER

, 2020.

D. O. CHEPKWONY

JUDGE

In view of the declaration of measures restricting court operations due to the

COVID-19

pandemic and in light of the directions issued by His Lordship the Chief Justice on

15

th

March 2020,

this Ruling has been delivered to the parties online with their consent. They have waived compliance with

Order 21 Rule 1

of the Civil Procedure Rules which requires that all Judgments and Rulings be pronounced in open Court.

D. O. CHEPKWONY

JUDGE