FRK v FK [2023] KECA 1522 (KLR)

FRK v FK (Civil Application E007 of 2023) [2023] KECA 1522 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1522 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Application E007 of 2023

GV Odunga, JA

December 8, 2023

Between

FRK

Applicant

and

FK

Respondent

(Being an Application for Leave to file and serve Notice of Appeal and Record of Appeal out of time from the Judgment and Ruling of R. Nyakundi J. and S. Githinji J. delivered on 8th October, 2021 and 16th December, 2022 respectively in Malindi High Court Matrimonial Cause No. 1 of 2019 (O.S) Matrimonial Cause 1 of 2019 )

Ruling

1. The Respondent, FK, instituted Malindi HC Matrimonial Cause No. 1 of 2019 (OS) against the Applicant, FRK. On 5th August, 2021, Nyakundi J. delivered a judgment which the Applicant was aggrieved with and the Applicant filed an application dated 13th October, 2021 seeking orders for review and/or setting aside the judgment. The application was premised on grounds that the orders in the judgment were entered without sufficient material disclosure of facts as the court disregarded some material facts in distributing the properties. In response, the Respondent averred that the issues raised were res judicata as they had been previously dealt with by Nyakundi J. The Respondent also filed an application dated 31st March, 2022 wherein she sought for an order of eviction against the Applicant.

2. On 8th October, 2021 S. Githinji J. found that the Applicant had not demonstrated that he had discovered new evidence which was not within his knowledge and that there was error apparent on record. The Learned Judge dismissed the Applicant’s application dated 13th October, 2021 and ordered that the Applicant be evicted from the 3 bedroom house on Plot No. xxx Kiwandani Plot KCCxxx Kiwandani Airstrip, Plot No. xxx Kiwandani and Plot No. xxx Kiwandani under the supervision of OCS, Kilifi. The costs of the application were to borne by Applicant herein.

3. Aggrieved, the Applicant lodged a Notice of Appeal dated 22nd December, 2022 on 6th March, 2023 against bot the judgment and ruling.

4. The Applicant now seeks vide his application dated 24th March, 2023 for an extension of time for filing and serving the Notice of Appeal and Record of Appeal against the judgment and Ruling of Nyakundi J. and Githinji J. delivered at Malindi on 8th October, 2022 and 16th December, 2022 respectively and that the lodged Notice of Appeal be deemed as duly filed and served within time.

5. Angeline Omollo, the Applicant’s advocate avers that the judgment of Nyakundi J. delivered in the absence of Applicant’s counsel allocated the Respondent most of the matrimonial properties; that Githinji J’s ruling dismissing the Applicant’s application dated 13th October, 2021 seeking review of Nyakundi J. judgment was delivered in the absence of Applicant’s advocates, Angeline Omollo & Associates Advocates; that the time prescribed within which to file an appeal against the ruling and judgment has since lapsed and leave is required which this Court has powers to grant; that after the delivery of the ruling, they requested for typed proceedings which are yet to be supplied as duly certified; that the orders sought herein will not prejudice the Respondents in any way; that the Applicant shall apply for a Certificate of delay at the filing of this Appeal on account of the delay in providing the certified copies; and that the delay has not been occasioned by her of her advocate and it is not inordinate or so great to be inexcusable.

6. In response, the Respondent avers that through an application dated 13th October, 2021, the Applicant sought to review the judgment of Nyakundi J. and the decree arising thereof and on his part, she filed an application dated 31st March, 2022 asking the court to evict the Applicant from the suit property; that her application for eviction was allowed while the Applicant’s was dismissed on 16th December, 2022; that the Applicant has never appealed against the judgment delivered on 5th August, 2021 and the decree as he chose to apply for review which was declined by court; that this application is an afterthought and has been filed after an inordinate delay of more than 1 ½ years from the date of the decree and since the application for review was dismissed; that no explanation for the delay has been given; that the intended appeal is frivolous since a party cannot apply for review and appeal from the same decree or order hence an abuse of the process of court; that the letter to the Registrar dated 22nd December, 2022 bespeaking the proceedings was neither copied, nor served upon herself of her advocates as required under Rule 82 of the CAR, 2022; that she will suffer great prejudice that cannot be compensated by way of costs if the orders sought by the Applicant are allowed since the Applicant has been collecting rent alone for more than an year, she cannot access the property and cannot develop any awarded to her and the Applicant has sold some properties and may sell her property; and that she is homeless staying in a small Kenya Wildlife Camp staff house yet the Applicant is occupying the house she was awarded by court.

7. Both parties filed their written submissions. Learned Counsel, Ms Apiyo for the Applicant and Ms Mutemiah who held brief for Mr Nyongesa on 4th December, 2023 when the matter came up for hearing on the Court’s virtual platform, informed me that they were entirely relied upon the same.

8. It is clear that in this matter the Applicant seeks Leave to file and serve Notice of Appeal and Record of Appeal out of time from the Judgment and Ruling of R. Nyakundi J. and S. Githinji J. delivered on 8th October, 2021 and 16th December, 2022. These are two separate decisions delivered on different days by two different judges in respect of different matters, notwithstanding the fact that they were made in the same Cause. In my view a party who wishes the Court to extend time for him to lodge a Notice of Appeal or a record of Appeal ought to specify the particular order against which the intended appeal is directed. The Rules contemplate a separate Notice of Appeal for each decision given in a matter. A party is not permitted to file a global Notice of Appeal challenging more than one decision in the same Notice of Appeal particularly where the orders in question were issued by different Judges on different days, as was the case in this matter. That was this Court’s position in Kasamani & Co. Advocates v Lab Construction Ltd Civil Appeal No. 224 of 1996 (UR).

9. In the premises, this application is incompetent and misconceived. In those circumstances, it is not necessary for me to deal with the merits of the application. It is hereby struck out with costs to the Respondents.

10. It is so ordered.

DATED AND DELIVERED AT MALINDI THIS 8TH DAY OF DECEMBER, 2023. G. V. ODUNGA.................JUDGE OF APPEALI certify this to be a true copy of the originalSignedDEPUTY REGISTRAR