Ahenda & another v Ogongo (suing as the legal representative of the Estate of the Late Joseph Omondi Ogongo) [2022] KEHC 15051 (KLR)

Ahenda & another v Ogongo (suing as the legal representative of the Estate of the Late Joseph Omondi Ogongo) (Miscellaneous Civil Application E027 of 2022) [2022] KEHC 15051 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15051 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Civil Application E027 of 2022

RE Aburili, J

November 4, 2022

Between

John Okoth Ahenda

1st Applicant

Hellen Owino

2nd Applicant

and

Helida Odhiambo Ongongo

Respondent

suing as the legal representative of the Estate of the Late Joseph Omondi Ogongo

Ruling

1. The applicants in this matter are John Okoth Ahenda and Hellen Owino while the respondent is Helida Odhiambo Ongongo (suing as legal representative of the estate of the Late Joseph Omondi Ogongo).

2. By an application dated October 4, 2022, the applicants seek for extension of time within which to comply with the orders of this court granted on June 14, 2022; leave to file memorandum of appeal without record of appeal pending that typing of proceedings; that this court do order the respondent’s advocates Ms Omondi & Company Advocates to sign all the necessary documents for opening of a joint interest earning account within the next 14 days and in default, the court be pleased to review its orders of June 14, 2022 and direct that the amount be deposited in court instead of a joint account given the non-cooperation of the respondent’s counsel; that this court be pleased to quash, set aside the warrants of attachment issued to DA Semy Auctioneers for having been obtained in utter disregard of the honourable court’s orders of June 14, 2022; the respondent and or her advocates be condemned to bear the auctioneer’s fees herein or any costs incidental to the proclamation and the attachment carried out in clear contravention of the court’s order/ruling of June 14, 2022 and that costs of this application be provided for.

3. The application is predicated on 25 grounds on the face of the notice of motion and reproduced in the supporting affidavits sworn by Daniel Khaemba legal officer for Old Mutual Insurance Co Limited and the 2nd applicant herein Hellen Owino.

4. In the grounds and supporting affidavits, it is stated and deposed on behalf of the applicants that the firm of Ms Murimi, Nduma, Mbago & Muchela were granted leave of court to come on record for the applicants on July 28, 2022.

5. That vide Misc civil application NoE017/2022 dated March 25, 2022, the applicants sought leave of this court to file an appeal out of time and that vide ruling of the court delivered on June 14, 2022, the applicants were granted leave to file their intended appeal within 30 days thereof as shown by copy of the order granting leave, annexed and marked (DK1).

6. That in the said ruling, the court granted a stay of execution of the judgment intended to be challenged, which was rendered on January 25, 2022 by Ukwala PM’s court. Further that the court also ordered that the decretal sum be deposited in a joint interest earning account of both counsel for the parties within 30 days of the said ruling of June 14, 2022 but that before the lapse of the said stay period, the respondent moved to proclaim the applicant’s motor vehicleReg No KBU 899J and attached it on June 28, 2022 and the auctioneers proceeded and sold the said motor vehicle at an auction, which attachment and sale was protected by the applicants advocates.

7. Further, it is deposed that despite the respondent’s counsel being served with the documents necessary for the opening of a joint account, he declined and or refused to execute the said documents and instead, he instructed the auctioneers to proceed with attachment and sale of the applicant’s motor vehicle aforesaid.

8. That as the respondent and her advocates have acted in utter contempt of court orders and in bad faith, they ought to bear the auctioneers fees.

9. Further deposition by the 2nd applicant is that the respondents did on September 22, 2022 instruct the auctioneers to proclaim her other motor vehicle registration No KCS 022M which the auctioneers are read to attach and sell yet they have not accounted for the proceeds of sale of the motor vehicle KBU 899J.

10. That on March 25, 2022, the applicants’ advocates requested for the typed court proceedings and judgment from Ukwala Law Courts but that the same have not been supplied to date despite several written reminders, which failure is occasioned by the acute shortage of staff at Ukwala Law Courts.

11. That a condition to the filing of the appeal was that the court directed the applicant to file a record of appeal simultaneously with the memorandum of appeal.

12. That therefore the applicant’s efforts to file the appeal have been frustrated by the unavailability of untyped proceedings, which are factors beyond their control.

13. That the intended appeal has high chances of success; that it is just and fair that the applicants be granted leave to file appeal out of time.

14. That the respondent has recovered a substantial part of the decretal sum hence she will not suffer any prejudice, unlike the applicants who have already suffered irreparable loss through disposal of their motor vehicle KBU 889J and the imminent threat to dispose off KCS 022M.

15. That the initial application was made on dated July 22, 2022 but when it came up for inter partes hearing on September 20, 2022, the court directed that the applicants do file a fresh application hence this application and finally, that this court has unfettered discretion to grant the orders sought.

16. The applicant’s application was opposed by the respondent through a replying affidavit sworn on October 11, 2022 by Mr Francis Omondi advocate for the respondent in which counsel deposes that the orders granting leave to appeal were clear that in default thereof, then the order extending leave lapses, that the stay and leave granted were conditional and that the opening of joint interest earning account, as per paragraph 46 of the ruling of this court made on June 14, 2022 was between the law firms which were on record for the parties.

17. That since the orders of June 14, 2022 were self-executing and were not complied with, then the said orders would lapse as shown by paragraphs 32 & 33 of the ruling of June 14, 2022.

18. That therefore the orders for leave to appeal out of time and stay of execution of decree having lapsed on July 14, 2022, without the appeal being filed, and that as there is no requirement that an appeal be filed only after supply of proceedings, the blame on the trial court is not justified.

19. That this court at paragraph 36 of its ruling appreciated the substance of the draft memorandum of appeal hence nothing stopped the applicants from filing the appeal in time and seeking to amend it later.

20. That judgment in the lower court was delivered with notice to all parties and that nothing stopped counsel from attending court to appreciate the substance of the judgment and make a proper decision on how to fashion their appeal.

21. That in any event, party and party costs were assessed by consent on February 22, 2022 hence it is inconceivable that the applicants’ counsel consented to costs without knowing the substance of the judgment.

22. That this court never made any orders that an appeal must be filed together with a record of appeal.

23. Concerning the attachment and sale of the applicants’ motor vehicle, it is deposed that warrants were issue to the auctioneers on June 2, 2022 as there was no stay and an attachment was made on June 13, 2022 as there was no order of stay and that because the orders of June 14, 2022 were self-executing, they lapsed on July 14, 2022 and that the auctioneer advertised the vehicle for sale on August 25, 2022, sold the attached motor vehicle on September 6, 2022 after which he filed his report into court and obtained extension of warrants to October 1, 2022.

24. Further, that motor vehicle KCS 022M was proclaimed on September 30, 2022 upon an application for reissue of the warrants since the amount realized in the sale of the 1st motor vehicle could not satisfy decree.

25. On the issue of opening of a joint interest earning by both counsel for the parties to this appeal, Mr Omondi deposed that the court order was clear on the names of the advocates whose joint names had to be used to open the account and admits that it was on July 14, 2022 when Mr Karanja advocate called him saying that he was seeking consent from the previous advocates, to come on record for the applicant. That it was not until July 19, 2022 that Mr Omondi received the letter dated July 14, 2022 from the present counsel for the applicants, forwarding a letter and forms for opening of a joint account and it was upon such receipt that he wrote declining the request and giving his reasons. Mr Omondi denies ever being served with an application for leave to come on record or requisite notice to change of advocates.

26. Mr Omondi further deposed that it was upon the parties’ advocates to agree on which bank to open an account not for him to be sent forms for Family Bank as was in this case, which forms were send to him and received on July 19, 2022.

27. Further, that in any event, no bank would have allowed him to open an account jointly with strangers to the orders of the court made on June 14, 2022. Counsel denied ever refusing to sign forms for opening of the joint account during the subsistence of the orders made on June 14, 2022.

28. In a further affidavit filed on October 21, 2022 sworn by Hellen Owino on October 17, 2022, she deposes that she is the owner of the sold motor vehicle Reg No KBU 899J and that she was never served with any notification of sale of her said motor vehicle, which was attached on June 28, 2022, and not June 16, 2022 and that she was never served with the notification of sale of the subject motor vehicle. The deponent also maintained that an application had been filed, dated July 22, 2022 and that the court directed that a fresh application be filed hence this application. She also annexed copy of notice of change of advocates dated July 22, 2022.

Submissions 29. The parties counsel filed detailed submissions which basically restate the detailed prayers, grounds and replying affidavit and further affidavit. I need not reproduce them here as I shall consider them in my determination of this application.

Analysis And Determination 30. I have considered the application by the applicants, the grounds, supporting and further affidavit, the replying affidavit by the respondent’s counsel and the submissions filed by both counsel for the parties and the authorities cited.

31. In my view, the main issue for determination is whether the application is merited.

32. From the onset, it is important to highlight that the matter herein is similar to HC Misc application No E017/2022 wherein the same parties appeared and the applicants herein sought for leave to appeal out of time and stay of execution of decree in the lower court pending the filing, hearing and determination of the intended appeal.

33. In the said matter, vide its ruling delivered on June 14, 2022, this court allowed the application by the applicants herein on both limbs of leave to appeal out of time and stay of execution of decree pending the hearing and determination of the intended appeal, on conditions attached thereto. That ruling is and was available to the parties immediately upon delivery in court in the presence of both parties’ counsel where Ms Atieno Pireh holding brief for Mr Okoth Oluoch advocate for the applicants whereas Mr Omondi advocate was present for the respondent.

34. For avoidance of doubt, the prayers sought in that file are as follows, and which this court also reproduced in that ruling delivered on June 14, 2022:1. …………………2. ……………….3. ………………4. That this honourable court be pleased to allow the applicant to appeal the judgment in Ukwala PMCC No 21 of 2020 on August 25, 2021 out of time;5. That this honourable court be pleased to order a stay of execution of the judgment delivered on January 25, 2022 pending the hearing and determination of the intended appeal;6. That the costs of this application be provided for.

35. That notice of motion which was brought under the provisions of section 1A, 1B, 3A & 79G of the Civil Procedure Act cap 21 Laws of Kenya, order 22 rule 22, order 42 rule, order 51 rule 1 and 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law was brought under certificate of urgency on May 17, 2022 but this court declined to certify it as urgent or to even grant exparte interim stay orders in the first instance. However, the court fast tracked the matter and by June 14, 2022, barely a month later, the ruling on the substantive application was rendered, granting the orders sought with conditions attached to the orders issued.

36. On the prayer for leave to appeal out of time, at paragraph 32 of the ruling, this court ordered as follows:“32. For the above reasons, I hereby grant to the applicant leave to appeal out of time from the judgment and decree in Ukwala SRM CC No E13/2020.

33. The intended appeal shall be filed and served within the next 30 days from today and in default, the orders extending the period for appeal shall lapse.”

37. Further, on the prayer for stay of execution of decree in UkwalaSRMCC No E13/2020 pending the filing, hearing and determination of the intended appeal, this court made the following orders after analyzing the merits thereof and apply relevant principles:“46. I allow the prayer for stay of execution of decree in Ukwala SRM CC E13/2020 pending the filing, hearing and determination of the intended appeal conditional upon the applicants herein depositing into a joint interest earning account to be opened and held by both counsel for the parties hereto, Ms Omondi & company advocates and Ms Ogejo, Omboto & Kijala Advocates LLP, within the next 30 days of today. In default, the stay granted shall lapse.”

38. One of the reasons why this court granted the orders sought as above and even declined to penalize the applicants on costs, was that it is the court below that had not supplied the court proceedings and judgment owing to the shortage of staff in that court.

39. However, this court having granted 30 days within which to appeal, and conditions for stay which was also 30 days from the date of the ruling, it was expected that the applicant would endeavour to comply with the orders of this court by:1. filing the intended appeal within 30 days of June 14, 2022 since there was no condition that the filing of the memorandum of appeal was conditional upon the record of appeal being filed simultaneous with the appeal, or even obtaining of court proceedings and judgment.

40. I say so because the applicant had annexed a draft memorandum of appeal which this court found not to be frivolous.

41. In the event that proceedings or judgment were not forthcoming, the applicant was at liberty to file the draft memorandum of appeal and seek to amend it in due course.

42. The other alternative would be that the applicant would be expected to approach this court under order 50 rule 6 of the Civil Procedure Rules and seek for enlargement of time, giving reasons for the delay and this court would have considered such an application on its merits.

43. Order 50 rule 6 of the Civil Procedure Rules provides that:“Where a limited time was been fixed for doing any act or taking any proceeding under these rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.Provided that the costs of any application to extend such time and any order made thereon shall be borne by the parties making such application unless the court orders otherwise.”

44. Furthermore, such enlargement of time may even be by consent as stipulated in order 50 rule 7 of the Civil Procedure Ruleswhich provides that:“7. The time for delivery, amending, or filing any pleading, answer or other document of any kind whatsoever may be enlarged by consent in writing of the parties or their advocates without application to the court.”

45. The above provisions are also applicable in the case where time is limited for doing any act like for opening of a joint interest earning account in the parties’ counsel’s names or for depositing of monies into court.

46. I have reproduced the above paragraphs of my ruling delivered on June 14, 2022 and the relevant provisions of the law to inform the parties and their counsel of the need to be reading court decisions and the law applicable before jumping to court to ask for orders.

47. It is therefore quite surprising that on July 25, 2022, the applicants herein came back to court, with reasons of course, seeking the following orders; among others:1. ………………………..2. ……………………….3. ………………………...4. ………………………..5. That this honourable court be pleased to grant the applicant leave to file a memorandum of appeal without the record of appeal pending the typing of proceedings.

48. I say surprised because this court never made any orders conditional for the applicant to file a memorandum of appeal together with a record of appeal.

49. That prayer is therefore farfetched and strange.

50. In addition, the applicant claims that the respondent executed decree during the pendence of or subsistence of the orders made on June 14, 2022 which were to lapse on July 14, 2022.

51. I have persuaded the court record and the annextures filed by the respondent’s counsel.

52. It is clear that motor vehicle registration number KBU 899J Isuzu FFR and assorted gas cylinders and other assorted plastic items were proclaimed on June 3, 2022. When the first application in E017/2022 was filed on May 17, 2022, there was no annexture thereto to show that the applicants’ property had been proclaimed for attachment and that is the reason this court declined to certify the application dated March 25, 2022 but filed on May 17, 2022, two months later, as urgent.

53. The court nonetheless fixed the application for interpartes consideration on June 13, 2022 on a fast track basis and on the latter date, the court heard parties counsel orally and delivered the ruling the following day June 14, 2022 in an expeditious manner and in a record one day.

54. From the proclamation dated June 3, 2022, there having been no stay of execution of decree, nothing stopped the respondents from executing the decree.

55. However, on June 14, 2022, this court delivered a ruling that granted the applicants herein a conditional stay to comply by filing the intended appeal within 30 days and also use the same 30 days to open a joint interest earning account with the respondents’ counsel and deposit therein the decretal sum.

56. In the replying affidavit sworn by Mr Francis Omondi advocate and annexures thereto, it is deposed, and it is not contested, that he received a letter dated July 14, 2022 on July 19, 2022 seeking for his consent granting the current advocates leave to come on record for the applicants in the place of their previous counsel, Bank application forms, authority letter and to submit his copy ofID and KRA pin of the firm together with registration certificate.

57. The applicants’ counsel has not told this court by what means he transmitted that letter at the 11th hour on the verge of the expiry of the orders of June 14, 2022. Mr Omondi has deposed that he received it on July 19, 2022 and wrote a response thereto on the same day giving reasons why he could not comply with the contents thereof.

58. Further, annexture, FO - 5 shows that the motor vehicle in question was attached on June 3, 2022 in the presence of George Odhiambo Otieno the husband of the 2nd applicant herein who has not sworn any affidavit to deny that fact.

59. On June 13, 2022, possession of the said motor vehicle KBU 899J was taken, yet on that same day, the applicant’s counsel was in court arguing the application for stay and never mentioned that the applicants’ motor vehicle was in custody of the auctioneers so that the court could, on June 14, 2022 when delivering its ruling, could order for its release pending compliance with the court orders made on June 14, 2022.

60. From annexture FO7, the auctioneers advertised the sale of motor vehicle KBU 899J in the Star Newspaper on August 25, 2022 which was long after the expiry of the orders of June 14, 2022. They filed into court the return of warrants of sale obtained on June 2, 2022 as extended on June 6, 2022 by Hon C.I Agutu, Senior Resident Magistrate, Ukwala which returns dated September 14, 2022 also reveal that the auctioneers had sold the motor vehicle on September 6, 2022 as per the advertisement in the Star Newspaper of Thursday, August 25th 2022. The bidders for the said motor vehicle are shown along the amounts of the bids, with the auctioneer taking the highest bidder for Kshs 1,450,000/=.

61. Although in her further affidavit, the applicant claims that her motor vehicle was attached on June 28, 2022 and not June 13, 2022, she has not stated that she was present during the alleged attachment which places the date within the stay period given by this court. The applicant has also not said anything about the person of George Odhiambo who was said to have been present on June 13, 2022 during the attachment of her motor vehicle, as per annexture Fo - 6.

62. Although the respondent never informed this court on June 14, 2022 that the applicant’s motor vehicle had been attached, it is clear that the proclamation of June 3, 2022 is not disputed. Further, albeit there is an allegation that there was no delay in filing of the application dated July 22, 2022 under certificate of urgency, the question is if the motor vehicle was attached on June 28, 2022 and not June 13, 2022, what was the applicant doing between June 28, 2022 to July 22, 2022 which is one month less six days only, by which time, the stated motor vehicle was still in the custody of DA Semy Auctioneers and it was advertised on August 25, 2022 for sale on September 6, 2022 and returns made to court on September 6, 2022 as endorsed by Hon C.I Agutu, SRM Ukwala Law Courts?

63. From the above facts which have not been controverted, I am unable to find that the attachment and sale of the applicants’ motor vehicle was undertaken during the subsistence of the stay orders of this court made on June 14, 2022.

64. In addition, even if there was change of advocates in the matter, the applicants were in court on June 14, 2022 and there is no explanation for the delay in the opening of the account and depositing the decretal sum, within the 30 days granted, only for the applicant’s counsel to purport to send the bank forms by letter dated July 14, 2022 which was on the last day of the stay orders.

65. As I have stated earlier on, there is no evidence that the letter was received on July 14, 2022 or that the respondent instructed the auctioneers to attach and take possession of the applicant’s motor vehicle during the subsistence of stay orders.

66. Even if the respondent’s counsel was to receive the forms on July 14, 2022, the question is, would the account have been opened and money deposited therein the same day? Further, what were the applicants doing from June 14, 2022 to July 14, 2022. Nothing is said about the delay in complying with the orders of leave and stay.

67. The respondent’s counsel has sworn an affidavit to the effect that the letter was received on July 19, 2022 which was long after the stay orders had lapsed and there was no appeal filed. I find no bad faith on the part of the respondent and her counsel and the auctioneers in the manner in which they conducted themselves in this matter.

68. I find no malice on their part as claimed by the applicants and their counsel as stated in the letter dated July 8, 2022.

69. It is further surprising that on July 8, 2022, the applicants’ counsel was complaining on their behalf that the respondent had breached the stay orders of June 14, 2022 but the applicants seemed not interested in addressing the question of filing of the appeal as directed by this court and secondly, the question of opening a joint interest earning account and depositing the decretal sum as directed by the court.

70. This court finds that the applicants have not come to this court with clean hands. They are guilty of procrastination and the reasons for such laxity is not explained.

71. If it required the applicants to have court proceedings and judgment to file a record of appeal together with the memorandum of appeal, which is not true as the order of June 14, 2022 or the law does not require any such, then the question is, what did the applicants require to have the decretal sum deposited in a joint interest account? Did they require a record of appeal or court proceedings or judgment? Not at all. All they required was the order or ruling of this court made on June 14, 2022 which was available as at the date when it was rendered.

72. The 2nd applicant who is an active party to this application and proceedings has not satisfactorily told this court why she did not file the appeal within the time given by this court. The reason given is flimsy and unacceptable.

73. The 2nd applicant has also not explained to this court why the decretal sum was not deposited in the joint interest earning account between her advocates and the respondent’s advocates within the 30 days stay period. The order was clear on which advocates were to open the account and if she found it necessary to change advocates, she still had the right to do so, but again, she has not lamented that the delay was due to change of advocates, since as at July 8, 2022, her previous advocates were still writing to the respondent’s counsel and copied to this court, without attempting to seek leave of court for enlargement of time to comply with orders of June 14, 2022.

74. There is even no single letter annexed to her affidavit to demonstrate to this court that after June 14, 2022, her advocates asked Ukwala Law Courts for typed copies of proceedings and judgment to enable them file the appeal within the 30 days granted by this court.

75. As stated in my ruling of June 14, 2022, the 2nd applicant has never paid for those copies of proceedings and judgment in Ukwala SRM CC E13/2020 as requested by them vide letter dated March 25, 2022 upon receipt of instructions from Old Mutual Insurance dated March 22, 2022 to appeal the judgment and quantum. What her counsel did was to write a request for certified copies of proceedings and judgment delivered on January 25, 2022 vide letter dated March 25, 2022 and her own annexture Hoo-2 shows that on 4. 4.2022, the court issued her with the invoice for Kshs 1,000/= which she never paid even as at the time she was filing her application dated March 25, 2022 and filed on May 17, 2022vide Misc. application E017/2022 which gave rise to the ruing of June 14, 2022. (See paragraphs 21 and 22 of my ruling dated June 14, 2022).

76. The applicant cannot, therefore, be heard to complain that the lower court had failed her. She failed herself. In my view, the applicant is abusing this court’s process by taking advantage of the unfettered discretion of the court to grant such orders.

77. This court cannot exercise its discretion in a vacuum and in favour of an applicant who is hell bent to delay court processes and to deny the decree holder her right to enjoy a lawful judgment.

78. I have said enough of the applicant’s own misdeeds as she is the author of her own misfortune.

79. I find no merit in any of the prayers sought before this court in view of the clear factual position that I have laid bare. I find the application dated October 4, 2022 which was refilled after closure of the application dated September 22, 2022 in Misc E017/2022 devoid of any merit. I dismiss it with costs to the respondent assessed at Kshs 30,000/=.

80. I so order.

81. This file is hereby closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 4THDAY OF NOVEMBER, 2022R.E. ABURILIJUDGE