Joseph Onyango Wanyama v Charles Juma Oloo & Chrispinus Okumu Juma [2015] KEHC 6901 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL APPEAL  NO. 38A OF 2006

JOSEPH ONYANGO  WANYAMA…….........…………APPELLANT

=VERSUS=

CHARLES JUMA OLOO……….…….…………….. RESPONDENT

AND

CHRISPINUS OKUMU  JUMA………..………INTERESTED PARTY

R U L I N G

CHARLES  JUMA OLOO and  CHRISPINUS  OKUMU JUMA filed the notice of motion  dated 14th August, 2014 through  their advocate M/S. Gabriel  Fwaya for the following orders;-

‘’1.  That the name of the Interested Party – Chrispinus  Okumu Juma be struck  out of this proceedings/appeal.

2.  That this appeal be dismissed for want of prosecution and non- compliance with directions/orders of the court and for being incompetent.

3.  That in the alternative and without prejudice to prayer 1 and 2above, the orders of 5th July, 2011 be vacated.

4.   That costs be provided for.’’

The application is based on seven grounds marked (i) to (vii) and the affidavit of Charles Juma Oloo sworn on 14th August, 2014.

The application is opposed by Joseph Onyango Wanyama, the Appellant through his replying affidavit sworn on 24th October, 2014.

During the hearing of the application on 29th October, 2014, Mr. Fwaya advocate represented the Respondent and Interested Party, while the Appellant was in person.  Mr. Okutta Advocate, through whom the memorandum of appeal dated 14th December, 2006 had been filed, informed  the court  that his office never came on record for the Appellant but only prepared the document.

The court has carefully considered the grounds  on the application, supporting and replying affidavits and submissions  by Mr. Fwaya  and the Appellant and find as follows;-

That this  appeal  was commenced  through  the memorandum  of appeal  dated 14th December, 2006 filed through M/S ‘’Ouma – Okutta  Associates Advocate for the Appellant.’’ The document  has only two parties as follows:

‘’ Joseph Onyango  Wanyama – Appellant

-versus-

Charles  Juma Oloo                  -  Respondent.’’

That  on 5th October, 2009, the  court directed that  a complete record of appeal be filed and served.  On the  22nd  February, 2010, the court allowed the Appellant to reconstruct the record of appeal and serve it in 30 days. Then  during the subsequent  mention on 22nd  March, 2010, the Appellant  indicated  his desire  to engage an advocate and another mention was fixed  on 19th April, 2010.

That the Appellant filed the application  for stay of execution of Busia  PMCC. NO. 310 of 2010 pending  the hearing and determination  of this appeal. The application  had  introduced  Chrispinus  Okumu  Juma as  the Interested Party, and on being satisfied  that the application  had been served  and no opposing papers  had been filed, the court  allowed the application  on 5th July, 2011.

That M/S. Ouma-Okutta Associates  Advocates came on record for the Interested Party through  the notice of appointment of advocates dated  3rd November, 2011.  On the same day,  counsel moved the court verbally to strike out the name of the Interested Party  from these proceedings but was directed to file a formal application.

The Interested party filed the  application  dated 20th February, 2012  to strike  out his name  from this appeal but the application is yet to be prosecuted to date. That  by notice  of change of advocate dated 15th April, 2013,  the firm of M/S. Waiganjo  & co. Advocates  came on record for the Interested Party in place of M/S. Ouma – Okutta  Associate Advocates. That  the Interested  Party  then filed the application dated 15th April, 2013 with  five prayers. The 4th prayer is  for striking out the name of the Interested Party and hence similar to the prayer in the application dated  20th February, 2012. The  2nd and 3rd prayers are for Respondent and Appellant  to be injuncted from interfering with the Interested Party’s use of land parcel Samia/Luchululo/Bukhulungu/1085. The application is also yet to be prosecuted.

That by  notice of appointment  of advocate dated 26th May, 2014, M/S. Fwaya  Advocate  came on record for the Respondent and Interested Party and thereafter   filed the application dated 14th August, 2014 which is subject of this ruling.

That as clearly set out above, this  appeal relates  to the Lower Court orders of 16th November, 2006 of Hon. E.H. Keago .  This  is discernable  from the memorandum of appeal dated 14th December, 2006 and record of appeal dated 23rd March, 2010 and filed  in court on 18th January, 2011 through  receipt  number 3657359.

That in view of the finding in (7) above, it is erroneous for the Respondent and Interested Party to contend that it is not clear in respect of which Lower court proceedings this appeal relates to.

That the order of 5th July, 2011 in respect  of the application  dated 16th June , 2011 for stay of execution  of proceedings  in PMCC. NO.330 of 2010 did not have the effect of making  Chrispinus  Okumu Juma   a party in this appeal.  The appeal relates to the parties  to Busia PMCC. No. 460 of 1996 only, and  Chrispinus  Okumu Juma  was not one of them.  It is instructive to note that in the  application dated 16th June, 2011, Chrispinus  Okumu Juma  was named  as an Interested Party  and this must have been due to the interest  he had reportedly acquired over land parcel Samia/Luchululo/Bukhulungu/1085 , which  was the suit land in Busia  PMCC. No. 460 of 1996. Order  1 Rule  10 (2)  of the Civil Procedure Rules  defines an Interested Party  as one whose  involvement is necessary for the court to ‘’effectually  and completely  adjudicate upon  and settle all questions involved in the suit.’’  The Supreme  Court  in the case of Trusted Society  of Human  Rights  Alliance –vs-  Mumo Matemo & 5 others [2014] eKLR defined  an Interested Party as follows;

‘’An Interested Party is one who has a stake in the  proceedings, though he or she was not a party to the cause  ab initio.  He  or she  is one who will be affected  by the        decision of the court when it is made, either way. Such  a  person feels  that  his or her interest  will not be  well  articulated unless  he himself  or she herself appears in the proceedings and  champions his or her cause.’’

It is  the considered view of this court that, though  Chrispinus Okumu Juma  is not a party in the appeal, his participation in these proceedings cannot be gainsaid considering he has since the orders of 16th November, 2006 acquired  interest  on the suit land. The extent to which the Interested Party will participate in the proceedings will of course be limited to his Interests.

10.    That the way the Interested Party was enjoined  in these proceedings through  the application dated 16th June, 2011 may not have been proper as  the application  for stay of execution  could have been made in a separate file.   This is because  the orders  being stayed  were not issued  2010. The court  is obligated by Article 159 (2) (d) of  the constitution to administer justice without  undue regard to procedural  technicalities.  The court is of the view that none of   the  parties to this appeal are prejudiced by the  inclusion of the Interested Party.

11.    That having  found that the Appellant  filed the record of appeal dated  23rd March, 2010  on 18th January, 2011, it  is only fair that  he be accorded his day  in court and the appeal decided  on merit even  though he may not have served within  the time given. The multiple applications, confusion on which party is represented by M/S.  Ouma – Okutta Associate Advocates and the criminal trial against  Appellant, may have gone  towards contributing to the delay in  disposing of this  appeal.

12.  That  while rejecting the application  dated 1 4th  August, 2014 with an order that each party  bears his own costs, the court issues further orders as follows;

That the application dated 14th August, 2014 is dismissed with each party bearing his own costs.

That  in view of Order (a)  above,  the pending  applications by the Interested  Party  dated 20th  February, 2012  and 15th April, 2013  are marked spent. This will pave way for the expeditious disposal of the appeal.

That the Appellant is granted 60 days to engage an advocate, if he still so desires, and within the same period ensure the record of appeal is served and an affidavit of service filed.

That the appeal be mentioned in March, 2015 to fix a hearing date.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 28TH DAY OF JANUARY, .2015.

IN THE PRESENCE OF;………PRESENT IN PERSON APPELLANT PRESENT IN PERSON RESPONDENT.

PRESENT IN PERSON INTERESTED PARTY.MR. FWAYA FOR RESPONDENT AND INTERESTED PARTY.

JUDGE.