Dorsilla Ajwoga v Samson Isaac, Odhiambo Owuor, Dede Owuor, Banda Owuor, Luka Agumba Okodo, Anditi Ojwang, Joshua Ada, Odindo Orwa & Okumu Okod [2015] KECA 39 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, J.A (IN CHAMBERS)

CIVIL  APPLICATION NO. 58 OF 2014 (UR 42/2014)

BETWEEN

DORSILLA AJWOGA ............................................................ APPLICANT

AND

SAMSON ISAAC……………………....….……………….1ST RESPONDENT

ODHIAMBO OWUOR………………......….……………..2ND  RESPONDENT

DEDE OWUOR .............................................................3RD   RESPONDENT

BANDA OWUOR………………………........……………..4TH RESPONDENT

LUKA  AGUMBA OKODO…………….........…………….5TH RESPONDENT

ANDITI OJWANG…………………….........……..……….6TH RESPONDENT

JOSHUA ADA………………………......…………...……7TH RESPONDENT

ODINDO ORWA……………………........….……………..8TH RESPONDENT

OKUMU OKOD ..............................................................9TH RESPONDENT

(Being an Application for extension of time to file Memorandum and Record of Appeal  out of time in the intended Appeal from a Ruling of the High Court of Kenya at Kisumu  (A.K  Kaniaru, J.) dated 8th May, 2014

in

H.C.C. NO. 63 OF 1987)

*******************

RULING

1. I have before me a notice of motion dated 22nd July, 2014, in which Dorsilla Ajwoga (the applicant) seeks leave of this Court to file out of  time  a  notice  of  appeal  against  the  ruling  of  the  High  Court (Kaniaru, J.) delivered on 8th May, 2014  in HCCC No. 63 of 1987. In that ruling, the learned Judge dismissed with costs an application by the applicant and 8 others in which they had sought orders that the decree arising from the judgment of the High Court given in the said case on 21st July, 1993 was statute barred and therefore incapable of execution.  In that  application they  had also  sought  an  order  that having been in continuous, uninterrupted and open occupation of the piece of land known  as North  Sakwa/Maranda/7  (the  suit land), they  had  acquired  title  to  it  by  adverse  possession.    The learned Judge dismissed both prayers of that application.  The applicant wishes to appeal against that decision.

2. The applicant states in her application that after delivery of the said ruling on 8th May, 2014, she instructed her lawyers to appeal against it but due to inadvertence, the lawyers did not file the requisite notice of appeal until 20th June 2014. That was about 20 days outside the stipulated period. She therefore seeks leave of this Court to either deem that notice of appeal as having been filed with leave or to file a fresh notice of appeal out of time.

3. One   of   the   criteria   for   the   grant   of   such   application is the demonstration that the intended appeal is arguable. When the matter came for hearing before me on 12th  May, 2015, Mr. Yogo, learned counsel holding brief for Mr. Kihara for the applicant submitted that the applicant's  intended appeal has overwhelming chances of success as  the  decree  sought  to  be  executed  is  more  than  12  years  old. Counsel further argued that the applicant is an old woman who does not understand the importance of filing the notice of appeal timeously hence the delay.

4. Opposing the application, Mr. Osino, the respondent, argued that this is one of the frivolous applications that the applicant and her group have  brought  to  court  in  total  abuse  of  the  court  process.  He submitted that the applicant and her group have filed numerous but frivolous suits  against   his   late   father   the   latest   being   Civil Application   No.  57  of  2014  for  stay  of  execution   which  was dismissed by this Court on 13th November 2014 for non attendance. He said given the history of this matter, all these proceedings by the applicant and her group are meant to vex and frustrate him and his siblings.   He urged me to peruse the ruling sought to be challenged and dismiss this application with costs.

5. A perusal of the ruling the applicant seeks to appeal against shows that the dispute between the parties has had a chequered history. The dispute  started  in  1966  over  the  ownership  of  the  suit  land.  The applicant and her group have all along claimed 50 hectares of the suit land which is registered in the name of the respondents’ late father Jackson Osino Oyoo (the late Osino).  A chronology of the events in  the  dispute  is  elaborately  set  out  in  the  judgment  of  this  Court (Gicheru, Akiwumi & Tunoi, JJ.A) delivered on 22nd March, 1995 in Civil Appeal No. 41 of 1994.  It is briefly as follows.

6. In 1966 Odhiambo Owuor, the 2nd respondent and two others entered the suit land which was occupied by the late Osino.  The late Osino challenged that entry before a panel of 25 elders who ruled in his favour. The applicant and her group refused to vacate forcing the late Osino to go to the Third Class District Magistrate’s Court at Bondo in 1967. On 14th January, 1969 that court ruled in favour of the late Osino.  The applicant and her group's appeal to the Resident Magistrate's  Court  at  Kisumu  was  dismissed  on  18th July  1972. Their further appeal to the High Court was, on 22nd June, 1974, also dismissed.

7. During the land adjudication in the area, the applicant and her group filed an objection before the Land Adjudication Objection Board but the same was dismissed on 12th August 1975 and on 14th August 1986 the suit land comprising 60 hectares was eventually registered in the name of the late Osino..

8. Following the said  dismissal  of  their  appeal  by the  Resident Magistrate's   Court  in  1972,  Odhiambo  Owuor  and  others  were evicted from the suit land in 1973.  On 7th March, 1987, Owuor and eight others armed with crude weapons invaded the suit land.  The late Osino sought police assistance invain.  That forced him to file HCCC No.  63 of 1987 in which he sought their eviction.  The applicant and her group apparently counter-claimed and sought a declaration that they had acquired title to the suit land by adverse possession. In a judgment   delivered on 21st July 1993, after rehashing the history of the dispute, the late Justice Mango dismissed the counter-claim and granted an eviction order against Owuor and his group. That is what triggered Civil Appeal No. 41 of 1993 which Owuor and his group filed in this Court.  That appeal, as I have stated, was, on 22nd March 1995, also dismissed.

9. Despite that decision, the applicant and her group refused to vacate the suit land forcing the legal representatives of the late Osino to apply for execution  of the  decree  in  HCCC  No.  63 of 1987, the eviction of the applicant and her group.  To counter t at application, the applicant and her group filed the said notice of motion in which they  claimed  that  the  decree  the  legal  representatives  of  the  late Osino were seeking to execute was statute barred.  They once more also claimed in that application that they had acquired title to the suit of land by adverse possession. As stated Justice Kaniaru saw their stratagem,and dismissed that application with costs.

10. Given this history, even if I were to accept that the applicant's failure to file the notice of appeal in time was due to inadvertence on the part of her lawyers, it is clear that the applicant has no arguable appeal at all.  Granting her the leave she seeks will therefore be an exercise in futility which will only serve to waste valuable court time.  In the circumstances I find no merit in this application and I accordingly dismiss it with costs to the 1st respondent.

DATED and delivered this 19th day of May, 2015.

D.K.MARAGA

………………………

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR