Akedi v Otieno [2023] KEELC 22371 (KLR)

Akedi v Otieno (Environment and Land Appeal 3 of 2021) [2023] KEELC 22371 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22371 (KLR)

[Originally Kisumu ELCA E28 of 2021]

Republic of Kenya

In the Environment and Land Court at Siaya

Environment and Land Appeal 3 of 2021

AY Koross, J

December 14, 2023

Between

Matiko Agoye Akedi

Appellant

and

Roselidah Joyce Otieno

Respondent

Ruling

1. The application that is the subject of this Ruling is a Notice of Motion dated 20/12/2022 in which the Appellant prays for the following reliefs from this Court:a.That the honourable court be pleased to review, set aside and vacate the ex parte orders issued on 17/01/2022 by Hon. Lady Justice A. Y. Koross dismissing the Appeal for non-attendance.b.That the Appeal be reinstated for hearing on merit.c.That the costs of the application be provided for.

2. The Motion is based on grounds set out on its face and on the Supporting Affidavit of the Appellant’s Counsel on record Mr. George Mugoye Mbeya which is deposed on even date.

3. According to Counsel, the Appeal raises arguable grounds since the decision of the Trial Magistrate in Siaya ELC 48 of 2018 which is the subject of the Appeal is ambiguous and requires determination by this Court. Counsel avers when this matter was scheduled for directions on 17/01/2022, he inadvertently failed to attend court hence dismissal of the Appeal for non-attendance.

4. Counsel urges this Court to allow the Motion because from the record, it is apparent the Appellant had been ready and willing to prosecute the Appeal and asserts Counsel’s error is excusable.

5. The Respondent whose previous advocates on record Otieno, Yogo, Ojuro & Co. Advocates ceased acting for her and is now acting in person and duly served, did not participate in these proceedings.

6. As directed by the Court, the Motion is canvassed by written submissions. The firm of Mugoye & Associates which is on record for the Appellant filed written submissions dated 28/09/2023. In them, Counsel asserts the issues that fall for determination are whether the reliefs sought in the Motion should be allowed.

7. Counsel submits the jurisdiction of this Court to deal with review of its decisions is derived from Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.

8. Counsel submits on application of these provisions of law, it emerges there is an error apparent on the face of the record since an Appeal could not be dismissed on a day set out for mention to confirm whether the Appeal will be admitted or not and to buttress his position, Counsel relies on Order 42 Rules 20 (1) and Rule 35 of the Civil Procedure Rules and on the decision of Zablon Mokua vs. Solomon M Choti & 3 others [2016] eKLR which cited with approval the case of Nyamogo & Nyamogo vs. Kogo [2001] EA 174 which stated: -“There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record.”

9. Counsel submits the procedure for dismissing an Appeal is clear and is articulated in the case of John Njagi Karua vs. Njiru Gatumu [2021] eKLR which cited with approval the case of Pinpoint Solutions Limited and Another -vs- Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] which held: -“20. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an Appellant fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010. 21. This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35(1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of the Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid…”

10. It is Counsel’s submission that because directions had not been given concerning hearing of the Appeal and there is no indication that the lower court file and proceedings had been forwarded to the ELC court for the Registrar to proceed and no notice having been issued to the Appellant by the Registrar, the appeal was not ripe for dismissal.

11. Having carefully considered the Motion, Affidavit and Submissions, the issue that falls for determination is whether this Court should grant the orders sought.

12. As rightfully submitted by Counsel, the applicable provisions that govern review of court orders are encapsulated by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 states that;“Any person who considers himself aggrieved-(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”While Order 45 Rule 1 (1) of the Civil Procedure Rules stipulates circumstances under which an order can be reviewed and Order 45 Rule 3 thereof outlines the possible outcomes. This latter provision states that:“(1)Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.(2)Where the court is of the opinion that the application for review should be granted, it shall grant the same: Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the Applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.”

13. Although, Nyamogo & Nyamogo (Supra) settles the principles of an erroneous decision and an error apparent on the face of record, this ground is not advanced in the Motion, its grounds and Affidavit. The Appellant merely introduces this issue in his submissions. It must be noted submissions are merely arguments and on that basis, this line of the Appellant’s arguments will be disregarded.

14. However, it must be noted from the record of 24/11/2022, prior to dismissal of the Appeal, the lower court record had been tendered and directions given on filing of Record of Appeal and therefore, the circumstances obtaining in Pinpoint Solutions Limited (Supra) does not suffice in this case.

15. Thus, the question that begs answering is whether this court ought to set aside and vacate its orders issued on 17/01/2022 and reinstate the Appellant’s Appeal because of Mr. Mugoye’s inadvertence.

16. By Order 42 Rule 21 of the Civil Procedure Rules, the Appellant may apply to this Court for the re-admission of an Appeal that is dismissed for nonattendance where it is proved that he was prevented by any sufficient cause from appearing when the Appeal was called out for hearing. In such circumstances the Court will re-admit the Appeal on such terms as to costs or otherwise as it thinks fit.

17. The Court of Appeal decision of Habo Agencies Limited v Wilfred Odhiambo Musingo [2016] eKLR stated that:“It is not enough for a party in litigation to simply blame the Advocates on record for all manner of transgressions in the conduct of litigation…parties have responsibility to show interest in and follow up their cases…”

18. In the instant case, it is evident from the record the Appellant was not keen to pursue the appeal. On 24/11/2021, the Court confirmed to Parties that the lower Court proceedings had been typed and the lower court file had been remitted to it and gave the Appellant 21 days within which to file his Record of Appeal, however, none was filed. The matter was mentioned on the fateful date to confirm compliance but counsel was a no show hence the dismissal.

19. In addition, the mention date was taken in the presence of Counsel and no evidence was proffered to show Counsel diarised the Appeal for a particular date instead of that of the fateful mention date.

20. Further, this Motion is filed close to a year from when the Appeal was dismissed and this court considers the instant Motion to have been filed inordinately late. A case belongs to a litigant and it is incumbent upon the Appellant to show the efforts to ensure the Appeal is reinstated timeously, however, it is evident the Appellant sat on his laurels.

21. This notwithstanding, I have considered the Memorandum of Appeal and lower court judgment especially its final disposal orders and they raise arguable grounds of Appeal and in the interests of justices, I hereby exceptionally invoke Section 3A of the Civil Procedure Act which empowers this court to make such orders as may be necessary for the ends of justice to be met and hereby find and hold the prayers sought are merited.

22. Utmost and for the reasons set out above, the Motion dated 20/12/2022 is allowed and each party shall bear their respective costs. This Court hereby issues the following disposal orders: -a.The order dismissing the Appeal is hereby set aside and the Appeal herein is hereby reinstated.b.The Appellant is hereby directed to file and serve his Record of Appeal within fourteen (14) days from the date of this order, failure of which, the order reinstating this Appeal shall stand vacated.c.Each Party shall bear their respective costs.d.Matter to be mentioned for directions on 28/02/2024. Mention notice to be served.It is so ordered

DELIVERED AND DATED AT SIAYA THIS 14TH DAY OF DECEMBER 2023. HON. A. Y. KOROSS................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARRuling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:In the Presence of:Mr. Mugoye for the appellant