James Obande v Kennedy Ouma Nyatogo [2015] KECA 765 (KLR)

IN THE COURT OF APPEAL

AT  KISUMU

(CORAM:  MARAGA, OUKO  , KANTAI  JJ. A)

CIVIL  APPEAL  NO.  75   OF 2012

BETWEEN

JAMES OBANDE ....................................................................... APPELLANT

AND

KENNEDY OUMA NYATOGO   ..................................................RESPONDENT

(Appeal from a Ruling and Order   of the High Court of Kenya at Kisumu

(Hon.  Justice N. R. Nambuye,  J)  dated  23rd September  2011

in

H. C. C. C. SUC  417  OF 2001)

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JUDGMENT  OF THE COURT

It is the duty of a first appellate  court in an appeal like this one to analyse and re-evaluate the evidence  and come to its own conclusions  bearing in mind that it did not see or hear the witnesses – See Selle v Associated Motor Boats Co. Ltd [1968] EA 123 where the duty of the first appellate court to re-evaluate the evidence and draw its own conclusions is discussed.  The same point was made in the earlier English case of Brasegirdle v Oxney [1947] 1 ALL ER 126 where it was held that a first appellate court  would only interfere with the conclusions of a trial court if they were unsupported by the evidence on record.

In  this matter  appellant, James Obande, had filed proceedings in High Court of Kenya at Kisumu Succession Cause No. 417 of 2001 that led to his being given a grant of letters of administration  to administer the  estate of Julius Nyatogo Opondo  (“ the deceased”).  He described himself in those proceedings as the nephew and only surviving relative of the deceased.    He used that grant to change  the ownership of a parcel of land known as Title No.  KODUMO EAST /392 (the suit land) from the deceased to himself.  When the respondent Kennedy Ouma Nyatogo learnt of those developments he filed objection proceedings in that cause  claiming that it was he, and not the appellant, who was entitled to  a grant.

On 19th September, 2002  Tanui, J, ordered, inter alia by way of directions taken in the succession  cause that the objector be plaintiff; that the objection application and accompanying affidavit be deemed to be the plaint; that the  petition be deemed as the defence while the petitioner became the defendant and; that the proceedings be determined through viva voce  evidence.   The matter was then fixed for hearing on many occasions but could not proceed for various reasons and it was not until 15th  October, 2008 that it came for hearing before Mwera, J (as he then was).  Neither the appellant nor his advocate was present.  The  learned judge being satisfied that the appellants'  counsel had been duly served with a hearing notice ordered  that the cause proceed for hearing that afternoon.   It was noted, in the afternoon session, that the appellants counsel though  served was still absent and evidence was taken and  recorded by the learned judge.

The respondent, as the  first witness, testified  that he was a son of the  deceased and had two living brothers  and a sister.   He denied being related to the appellant at all and prayed that the suit land reverts  to himself and his siblings.    This evidence was supported by two witnesses who were local administrators who confirmed  to the learned judge that  the appellant was not related to the deceased at all but that the respondent was a son  of the deceased.   At the close  of the hearing on the same day it was ordered that written submissions be filed on 22nd  October, 2008.

On 21st October, 2008 a counsel instructed by the appellant filed an application under certificate of urgency presumably to set aside the proceedings  that had taken place in the  absence of the appellant.   The court  certified that application urgent  and ordered that it be fixed  for hearing within twenty one days.   The record shows that the matter  was in court on 12th  November, 2008 when that  application was withdrawn by consent of the parties.   The learned judge therefore continued with the matter and proceeded to deliver a judgement (headed “Ruling”) on 23rd January, 2009 where he  found that the respondent and  his siblings were the rightful administrators of  the deceased's estate and he  proceeded to cancel the title of  the suit land that had been issued to the appellant.  The learned judge also annulled the grant of probate.

By an application dated 5th October, 2009 the appellant prayed for setting aside of proceedings and judgement  that had taken place.   It was stated in the body of the motion, and in  the supporting affidavit, that non-attendance at the hearing by the appellants' advocate was for reasons beyond his control; that the appellant had not attended court on advise of his counsel that his attendance was not necessary and that the advocate had not himself  attended court because he had  been taken ill.

Nambuye, J (as she then was) heard the  application and dismissed it in a Ruling  delivered on 23rd September, 2011.   The learned judge found that the  appellant had not shown which issues  he could canvass if the matter  was reopened the appellant having  failed, as found by the learned  judge, to dislodge the fact that it was the respondent and his siblings who were the rightful heirs of the deceaseds'  estate; that the appellant had not demonstrated that he had a right superior to the said  heirs and finally that the  application had been made after   inordinate delay.   Those are the  orders that provoked this appeal.

There are four grounds in the Memorandum of Appeal whose theme  is to the effect that the learned judge erred in shutting the appellant from the seat of justice and/or that the mistake of counsel had been visited upon the appellant and that the proceedings before Mwera, J were a nullity having been conducted by an advocate  without authority or instructions.

The appellant represented himself  before us and gave a history of the many advocates he had engaged  in the matter at the High Court and who had all failed him so completely that he had decided  to act in person.

Mrs.Onyango, learned counsel for  the respondent, submitted that the  earlier proceedings (before Mwera, J) could not be impeached because the  appellants' counsel had been served  with a hearing notice and failed  to attend court.   In any event, thought

learned counsel, the appellant had never challenged the fact that the  respondent was a son of the deceased and a rightful heir to the estate of his father.

We have considered the record of  appeal, Memorandum of Appeal,  submissions made and the law.

On the complaint by the appellant that he was condemned unheard and/or  that he was punished  for mistakes of his counsel the record shows that when the  cause was called for hearing on 15th October, 2008 the learned judge was satisfied that the appellants' counsel had been duly  served with a hearing notice but failed to attend court.   The record further shows that  an application was filed on behalf of the appellant  on 21st October, 2008 – before submissions  were made.   That application which  sought  to arrest judgment or set aside  the proceedings that had taken place on 15th October, 2008 was withdrawn by consent of  the parties on 12th November, 2008.  It must be presumed that the lawyer who freely withdrew that application had the appellants' instructions to do so and it would be prejudicial to the  respondent for the appellant  to turn around and blame his own lawyer who had hid ostensible authority  to compromise the application as he did.   As we have already stated this is  a first appeal and although we  are mandated to look at the whole  matter afresh and reach our own  conclusions based on the evidence on record we must be careful  not to replace the discretion  of the trial court with our own.   The judge was exercising  a discretion and we should  not interfere with exercise of such a discretion unless it is shown that the judge has misdirected his mind in the matter and in the result reached  a wrong decision or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of that discretion and that as a result there has been misjustice  -Mbogo & Another v Shah[1968] EA 93.   On our own consideration of the matter as a whole there is  no merit in  the complaint that appellant was condemned unheard or that he was punished for mistakes of counsel.    The appellant was accorded every opportunity by the court and the complaint is accordingly dismissed.

The main complaint in the appeal  is whether or not the appellant  was denied a right to be heard, or, to use the language of the Memorandum of Appeal, whether  the appellant was shut from the seat of justice.

The appellant had in the affidavit  in support of petition for grant of letters of administration described himself  as a nephew and the only surviving relative of  the deceased.  When the respondent joined the  fray and stated on affidavit and in evidence in court that not  only was he a son of the deceased but he had two living brothers and a sister the appellant did not offer an answer or challenge.   That is what led Mwera, J, to hold:

“In this court's opinion considering the evidence, oral  and by affidavit, the submission and appreciation of the law, first the objector's evidence stands uncontroverted.  There was nothing in rebuttle (sic) from James Obande  Owuor.   The court was thus satisfied that James Obande  the petitioner was never a nephew or in any other  capacity, a relative of the deceased Nyatogo, entitled to petition to administer the deceased's estate.  He seemed to have particularly targeted plot no. 392 of all other  assets of the deceased.   The court heard that the land was unoccupied.   The proper beneficiaries to succeed Nyatogo were/ are Kennedy (PW1) and his 3 siblings.  The petitioner did not seek their consent to petition as he  did and that was concealing material facts pertaining to the deceased's estate.   That act amounted to fraud as  even the replying affidavit does not point to any other basis why the petitioner moved to succeed parcel no. 392. ”

Nambuye, J, in the Ruling appealed from, found, and we entirely agree, that even if the matter was reopened for a fresh hearing the appellant had not demonstrated what issues were alive where findings could be made.  The appellant had misrepresented to the High Court that he was a nephew and the only surviving relative of the  deceased.   By doing so he concealed a material fact from that court – that the deceased had living children, including the respondent, who had a right to inherit the property of the deceased.   It was demonstrated to court by the respondent and his witnesses that the appellant was not related to the deceased in any way at all and that  he was not entitled to benefit as an inheritor to the estate of the deceased.  The learned judge was therefore right to find that there were no issues pending for determination and was right  to refuse the application by  the appellant.  Those conclusions persuade us to hold, as we  hereby do, that this appeal has no merit and it is  hereby dismissed with costs to the respondent.

Dated and delivered at Kisumu this 23rd  day of April, 2015.

D. K. MARAGA

………………..……

JUDGE OF APPEAL

W. OUKO

………………………

JUDGE OF APPEAL

S. ole KANTAI

……..……………..

JUDGE OF APPEAL

I certify that this is a truecopy of the original.

DEPUTY REGISTRAR