Kisanga JA: H
This is an application for extension of time to serve on the respondent a copy of the notice of appeal and a copy of the letter to the Registrar applying for proceedings in the case. The applicant is advocated for by Mr E H Mbuya while the respondent appeared and resisted the application in person.
The ground for the application, as set out in the affidavits of Mr Mbuya and his clerk, one Elda Maro, is that the said Elda Maro, I
through inadvertence, failed to serve the two documents above mentioned on the A respondent's advocate.
The respondent vigorously resisted the application on the ground that inadvertence on Mr Mbuya's clerk does not amount to sufficient cause for granting extension of time, and that Mr Mbuya must take responsibility for the failing of his clerk. He added that this case has been in the courts for too long so that granting this B application would serve to deny him further the right to enjoy the fruits of his victory which he has consistently won in the lower courts.
I have given due consideration to the arguments advanced by both sides. Under Rule 8 of the Court of Appeal Rules this Court has power to grant the extension of C time sought if sufficient cause is shown for doing so. Although generally speaking a plea of inadvertence is not sufficient, nevertheless I think that extension of time may be granted upon such plea in certain cases, for example, where the party putting forward such plea is shown to have acted reasonably diligently to discover the omission and upon such discovery, he acted promptly to seek D remedy for it. In the instant case Mr Mbuya's clerk is shown to have overlooked serving the respondent's advocate with the documents in question on 27 November 1995 when she filed the notice of appeal in Court. Mr Mbuya in his affidavit says that he discovered this omission on 2 February 1996 when he was E conducting regular checks of his files. In his oral submission he stated that he was conducting such check upon resumption of business following the court Christmas vacation which starts in mid-December and finishes at the end of January each year. By this I understood Mr Mbuya to say that he took off time to F rest during the court Christmas vacation and went back to work only after such vacation was over. If this is so, then Mr Mbuya had just about two working weeks between the date of the omission by his clerk, ie on 27 November 1995 and the date he discovered the omission on 2 February 1996. The rest of the time was G taken up by the court Christmas vacation. It seems to me that Mr Mbuya acted reasonably diligently whereby he was able to discover the omission within the space of only two weeks. And upon discovery of the omission on 2 February 1996 he again acted reasonably promptly by filing this notice of motion in Court on 8 February 1996 seeking to have the omission remedied. He did this before the H matter was set for hearing and indeed before the opposite party took any steps to have the notice of appeal struck out for reasons arising from the omission in question.
In my view the way Mr Mbuya conducted himself in handling this I
A matter following the omission would warrant consideration for enlarging the time in his favour. Accordingly I grant the application. A copy of the notice of appeal and a copy of the letter to the Registrar applying for a copy of court proceedings are to be served on the respondent within three days of this Ruling. Costs of this application shall abide the results of the appeal. B
1997 TLR p154