Benson Ng'ang'a Ndirangu v Peter Waititu Gatoto [2014] KEHC 45 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

MISC. CIVIL APPLICATION  NO. 331 OF 2013

BENSON NG'ANG'A NDIRANGU........APPLICANT

VERSUS

PETER WAITITU GATOTO............. RESPONDENT

RULING

Aggrieved by the judgment and decree of C. Riany issued on or about 18th October, 2012 in Naivasha Resident Magistrates'  Civil   Suit  No.  339  of  2012  the   applicant, Benson Ng' ang' a, brought the  notice of motion dated  18th October, 2013 praying that he  be  granted leave  to  file an appeal out  of time against that judgment and decree; and that the  leave,  if granted,  do operate as stay of execution of    the     said   judgment    and   decree   and   all     other consequential  orders  pending  the  hearing  and determination of the  intended appeal.

The  application was brought under Section 1A,  1B, 3A , 79G  and Order 42  Rule  ( 1),  (2),  (5) of the  Civil  Procedure Act   and   Rules  respectively  and  is   premised   on    the grounds that  the applicant  intends  to   file   an  appeal against  the  said  judgment  and  decree;  that  the intended  appeal  has   high  chances of success.   The applicant is apprehensive that, unless the orders sought are granted, the respondent might carry out execution against him thus  occasioning him   irreparable  injustice, besides rendering the  intended appeal nugatory.

In  the affidavit sworn in support of  the  application, the applicant contends that he  was neither  served with summons nor  a notice of  entry of  judgment as by  law required;  and  he   is   not    the    owner  of   Motor    Vehicle No. KAS  557B Isuzu  Lorry which  allegedly collided with motor vehicle registration  No. KBD 213Q. Further the respondent had no  locus to  lodge   the   claim against  him and  that  since the   respondent  was  not   the  registered owner of  motor vehicle registration  No.  KBD  213Q then no  employer-employee relationship  existed  between him and his co-defendant (Stephen Maina Njau).

In  opposition to  the application the respondent filed  the replying affidavit sworn  on 14th March, 2013 in  which he  has, inter alia, deposed that the  application has  been brought under the wrong provisions of  the   law;   that  the applicant is  guilty of  material none disclosure and that the application has not   been brought in  good  faith (is  a continuation of  the applicant's scheme to  frustrate him). Further that the issues raised in  the  application  were heard and finally determined in  other applications which the  applicant had earlier on  filed,  and the  orders sought cannot issue as the  applicant's right was to  set aside the interlocutory judgment hereto or  file  an  appeal against the   refusal  to  set   aside  the   interlocutory  judgment  or appeal against the  conditional leave  to  defend which was granted on  21st March, 2013.

Terming the contention by  the  applicant that he  was not the owner  of  motor  vehicle registration  number  KAS 557B and that the  respondent was  not   the owner motor vehicle registration number  KBD  213Q false,  the respondent has maintained that he  had sufficient interest in  motor vehicle registration  number  KBD  213Q  having bought it from  its registered owner.

In  a  rejoinder the applicant filed  a supplementary affidavit in which he  reiterates  that his application is properly  grounded  in  law and that  the  lower court  in granting him a  conditional stay  acknowledged that  the service was irregular.  He contends that the conditional stay granted by the   lower court was punitive. He has denied the allegation that he has resorted in filling a multiplicity of applications and  explained that  all the applications he  filed  were  necessary in  the circumstances and made within the  ambit of law;  that he  only  decided  to move    to   this  court  when  he   realized  that   the  trial magistrate had taken a prejudicial position on  his pursuit for  justice. He reiterated his contention that  he  was non suited as a party in  the suit at the  lower  court and that no  evidence was adduced  in  the  lower  court to  prove his connection    with      his    co-defendent   and    that    the respondent was the   owner of  the   suit property. Further that  in  view  of the  affidavit evidence adduced  before this court,  it   cannot  be    said  he   is   out  to   frustrate   the respondent's   rights   which  he    contends   were unprocedurally obtained.

As  concerns the alleged procedural  defects  in  his application,  the   applicants contents that this court has immense powers to  rectify any  errors apparent on  record and give  substantive justice to  those who  approach it  for relief.

I have read and considered the rival arguments herein, the sole issue for determination is whether the applicant has satisfied the legal requirements for  grant of  leave to appeal out of time.

It is not in dispute that  under section 79G of  the   Civil Procedure Act,  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 on  time.

In the instance  application,  it  is  contended  that  the applicant has not  demonstrated why  he  failed to  file  the appeal on  time. The respondent argues that the appellant only preferred the   present application after all his other motions to frustrate  the judgment failed. In reply to the foregoing contention the applicant has deposed as follows:-

"10. That it is not true that I have filed multiple similar motions that have been dismissed   as   I    demonstrate herein below;

a) Notice of motion dated 28. 1.2013was allowed on  condition I deposit in  court Kshs.656, 435. 00  (the court recognized that indeed I had not been served with summons to enter appearance) but the condition given was too prohibitive and punitive  and  being  aggrieved  by  it,  I sought it to be  reviewed and or varied in the light of  evidence I had then;

b) The motion dated 31. 7.2013 sought to review the conditional  order requiring I deposit Kshs.656,435. 00 in  court before be I  heard  on   my    defence; it  further sought to   review   the   judgment   of 18. 10. 2012  upon discovery of  new evidence  that  the  respondent did   not own the motor vehicle subject matter of the judgment he got, and I too, was not suited in the claim as I did not own the motor vehicle said  to  have occasioned the accident;

c) That when the motion dated 31. 7.2013 had been  argued between the  parties and was awaiting ruling on 12. 8.2013, the respondent retrieved the court file from  the  magistrate's  chambers,  and filed  a   motion seeking to have the proceedings conducted by  my advocate, Wycliffe Ouma  Okuta  expunged  from court  record  on  account  of   him  not having taken a  practising certificate for 2013, facts that had not been raised all along  was away of   technically  denying me  justice. The said application was withdrawn with cost but a similar one filed on 29. 8.2013, having regularised his practice status within 2 days. My advocate on record advises me that this does not amount to two motions since one was withdrawn and a  similar one filed;

d)  It is only the  application dated 29. 8.2013 that  was dismissed despite its  merit  prompting me to  take the logical step of  seeking assistance  of another  court,  High Court, which I  am doing..."

It is clear from the  foregoing explanation that  the applicant  opted to  apply  for review  of  the order of the  lower court granting him  a conditional leave  to defend the suit.

Under  the    provisions    of  order  45  rule  1  of   the   Civil Procedure Rules the  applicant had an option of  applying for  review or  filing  an appeal against the   decision of  the lower court.  Preference for review over an appeal of the impugned decision of the lower court only  suspended the applicant's right to appeal.

After the trial court refused to grant the applicant's application for review or set aside its impugned order, the applicant had the  right to  apply to  this court for  leave  to file an appeal against the impugned decision of the  lower court out of time. This notwithstanding,  I agree with  the respondent's  argument that the  respondent  could only seek leave to apply against the lower  court's refusal to set aside its ex  parte   judgment and/ or the  lower court's refusal to review its conditional order for leave  to defend. Be that as it  may, I take note that through the intended appeal the  applicant seeks to set aside  the entire judgment of  the   lower  court on,   among other  grounds, the  grounds  that there was no  evidence that he  was served with summons  to  enter appearance or  that there existed  an  employer-employee relationship  between him  and his co-defendant or  that the  respondent owned the suit property at the  material time. In my view,   these are pertinent matters which the court should investigate in the interest of justice.   Consequently leave is granted for applicant to file the  appeal out of time.  The same be filed within 21 days hereof.  Costs of the application be borne by applicant.

Dated, Signed and Delivered at Nakuru this17th day of September, 2014.

H.A OMONDI

JUDGE