Kihara Muttuu v M'mugambi M'mbogori [2015] KEHC 1112 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL CASE NO 75 OF 2008

KIHARA MUTTUU.......................................................................................PLAINTIFF

VERSUS

M'MUGAMBI M'MBOGORI …...............................................................DEFENDANT

R U L I N G

This application is dated 22nd day of April, 2015 and seeks orders that:-

This application be certified urgent and be heard ex-parte in the first instance.

The time for filing an appeal against the judgment and Orders issued by the Court be extended.

The Judgment delivered on 1st July, 2014 and the Orders be set aside pending the outcome of the intended appeal.

The costs of this application be in the cause; and

Such other orders as the Court shall deem fit to grant in addition.

The application  is supported by the affidavit of MWORIA M.MBOGORI, the widow and personal representative of M' MUGAMBI M' MBOGORI, deceased, the 1st defendant.

The application is buttressed by the following grounds:-

THATthe Registrar delayed in preparing and releasing typed copies of proceedings, Judgment and the Order.

THATthe 1st Defendant applied for certified copies of the proceedings, Judgment and Order and filed the Notice of Appeal within the prescribed time.

THATthe time prescribed for filing an appeal against the said Judgment and Order has now lapsed as a result of the reasons in paragraph 1 above.

THATif the Defendant is not allowed to file an appeal outside the stipulated time it will occasion an injustice; and

THATthere will be no injustice occasioned on the Plaintiff/ prospective Respondent if the above prayers are granted.

The defendant's Advocate has,inter alia, submitted that he has explained to the satisfaction of the Court the cause of the delay in the filing of the  appeal against Judgement in this case.  He proffers that there was delay in the preparation and releasing of copies of the typed proceedings.  He also says that he has filed a Certificate of delay.  He also opines that Article 159(d) of the Constitution requires Courts to serve justice without undue regard to procedural technicalities, and also proffers that Sections 1A, 1B and 3A of the Civil Procedure Act give effect to Article 159 (1) d of the Constitution.

He cites the case of Githera Versus Kimungu (1976-1985) EA 101 for his assertion that procedural technicalities can not be promoted to the detriment of substantive  justice .  He has also tendered the case of Kenya Commercial Bank Limited Versus Kenya Planters Co-operative Union, 2010 eKLR where the Court allowed the filing of an application which was otherwise time barred.  He has submitted that the case of M'Arimba Versus Joseph Kajuki (HCCA No. 31/99, Meru ) supports his case as he is seeking to have an exparte Judgment set aside.

The defendant has also presented the case of Martin Mutisya  Kiio & Another Versus Benson Mwenda Kasyali, Machakos, High Court, Misc. Application No. 107 of 2013  to support his assertion that an appeal can be filed by an Advocate without filing an application to come on record. I, however, note that this authority concerns a situation  where an appeal has already been filed. To further support this assertion,  the defendant has cited the cases of Magereza Savings and Credit Co-operative  Society Limited Versus Samuel Gachini Wahiu and 881 others( 2014) eKLR and Florence Hare Mkaha Versus Pwani Takawal Mini Coach and Mohamed Athman (HCC No. 85 of 2010, Mombasa).

The defendant has further submitted that this application can not be dismissed on the sole ground that  he did not file his Submissions on time. Regarding extension of time the defendant has proffered the case of Kenya Commercial Bank Ltd Versus Kenya Planters Co-operative  Union (Supra) which  quoted the case of Leo Sila Mutiso Versus Rose (Nairobi C.A No. 255 of 1997 as stating as follows:-

"It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are first, the length of  the delay: secondly, the reason for the delay; thirdly (possibly),the chances of

the appeal succeeding if the  application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted”.

The defendant returns to the issue of delay. He submits that the delay was occasioned by the registrar's  delay to avail the proceedings coupled with the administrative tasks involved in the change of  Advocates by the applicant. The plaintiff cites the case of Philip  Chemwolo & Another Versus Angustine  Kubende (1982-88) KAR 103 where the Judge stated  as follows:-

"I think the broad equity approach to this matter is that unless there is fraud or intention to overreach there is no error  or default that cannot be put right by payment  of costs.  The Court as is often said exists for the purposes of deciding the rights of the parties and not for the purpose of  imposing discipline ".

The defendant says that his intended appeal has high chances of succeeding.  He prays that he be given a chance to exercise his Constitutional  right of Appeal.

The plaintiff has objected to the application and , inter alia, submitted that the defendants should have applied to have the order striking out the defence set aside  and then appeal from the ruling resulting therefrom.  The Plaintiff has tendered the case of Kirema M' Arimba Versus Joseph Kanjuki (H.C.C.A 31 of 1999)  as an authority for this assertion. The plaintiff says that Hon. Justice J.A. Makau ,Judge, in the case of Kirema M'Arimba (Supra at Paragraph 9 of page 5 of his judgment opined as follows:-

“It should be noted that after a party has had his application to set aside ex-  parte judgment is heard and determined, that is when a party has right of appeal;  otherwise before then a party who is aggrieved by an exparte judgment has no  right of Appeal”.

The plaintiff also proffers that the Learned Judge buttressed his ruling by quoting Order 43 Rule (1)  which provides:-

(1) An appeal shall lie as of right  from the following orders and rules  under

the provisions of section 75 (1) h of the Act:- (h) Order 12, rule 7 (setting aside Judgment or dismissal for non attendance”.

The plaintiff has submitted that the order dated 22/7/2007 is a  form of ex-parte judgment which must be challenged and an appeal would then accrue from the ruling.  He concludes  this assertion by saying that no appeal can be filed from the judgment dated 1/7/2014.

The plaintiff further submits that in accordance with the provisions of Order 9 (Rule 9) of the Civil Procedure Rules, a change of Advocate requires to be sanctioned by the Court upon notice to all parties or by a Consent between the outgoing and the proposed incoming Advocate.  The plaintiff opines that Order 9 rule 9 is in mandatory terms and that the current advocate for the  defendants had a duty to comply with its requirements. The Plaintiff argues that there is no application worthy of consideration as the Notice of Motion dated 22/4/2015 is signed  by an unauthorized person and is therefore a nullity ab initio.

The Plaintiff has trashed the filing of a Certificate of Delay as being unnecessary as Under Rule 82(1) of the Court of Appeal Rules, an appeal is filable within 60 days from lodgement of a notice of appeal or from 60 days from the date of the Certificate of Delay. It is argued that this application which was filed on 22/4/2015 was absolutely unnecessary as the time for filing of the appeal had not expired.

The plaintiff further, inter alia,submits that under Rule 4 of the Court of Appeal Rules an application of this nature can only be entertained by the Court of Appeal and not the High Court. Whereas I agree with the defendants that they  may be excused from the provisions of Order 9 Rule 9 of the Civil procedure Rules, when there is already an appeal, in this case no appeal has been filed in the Court of Appeal.

I do not wish to delve into the issue of the intended appeal having high chances of success.  This is because,  in my view, the applicant has not impeached the applicability of Order 43 Rule 1 of the Civil Procedure Rules.  Before seeking to appeal out of time,  the applicant should have applied to set aside the order striking out the defence and then should have appealed  from the ruling arising therefrom.  As the matter stands now, there is absolutely no defence in this suit. The defence was struck out by the Hon. Lady Justice Angawa, Judge, as she then was, way back on 22/02/2007, over eight and a half years ago. I  also note that the allocation of the suitland to the original defendants was quashed in Judicial Review Application No. 555 of 1996, at Nairobi , which decision was not appealed against.

I do find that the judgment of this Court dated 01/07/2014 was a form of exparte judgment.  The defendants did not take part in the proceedings. Again there was no defence.  There was no right of appeal as envisaged by Order 43  of the Civil Procedure Rules.

I have carefully considered the respective Submissions tendered by the parties.  I  have also carefully examined the authorities the parties have proffered in support of their submissions.  I do rule that express provisions of the law such as the different provisions of the Civil Procedure Rules, 2010,  are legal requirements and not mere procedural technicalities. Finding otherwise would spawn veritable confusion in the judicial handling of procedural matters.

In the circumstances, I find that this application is not meritorious. It is dismissed. Costs are awarded to the plaintiff.

It is  so ordered.

Delivered in open Court at Meru this 5th day of November, 2015 in the presence of:-

Cc. Danie/Lilian

B. G. Kariuki for Plaintiff

P. M. NJOROGE

JUDGE