M.A v M.A [2014] KECA 466 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(WAKI,  WARSAME & KIAGE,  JJ.A)

CIVIL  APPLICATION NO. NAI. 245  OF 2013

BETWEEN

MA ............................................................APPLICANT

AND

MA.........................................................RESPONDENT

(Areference from thedecision of a single judge of the Court of Appeal (G.B.M. Kariuki, J.A) dated 28thFebruary, 2014forrestorationof the applicant’s Notice of Motion No. 114 of 2014 (Koome, JA) dated 12thJuly,2013

in

H.C.D.C.No. 73 OF 1985)

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

RULING  OF THE  COURT

The matter before us is fairly narrow. It is a reference  from the decision of a single  Judge  of this Court to the full court; not an appeal as purported by a “notice  of  appeal”and  “submissions on appeal”,  filed  by  the applicant,M M A(Mrs. A).  The learned single  judge was Justice G.B.M Kariuki JA before whom  a notice of motion dated 16th September, 2013, fell   for  hearing  and   determination  on   28th  January,  2014.  Mrs.  A represented  herself in  that application, as she  has  in  other matters  and  still does  before us.  She  says  she  does  not trust advocates  after she  had  nasty experiences  with them.  It is  her right.  Under the  Constitution,  courts  are bound to give access and listen to all and sundry who come before them. Even the dull and ignorant; they too have their story.

But Mrs. A  is neither dull nor ignorant. She has been in and around these courts for 29 years since 1985  when  her husband, Dr.  M A filed  a petition in  the High  Court to divorce her on account of cruelty. At some point, the High  Court (O’Connor J) decided  the petition  against her and  she was aggrieved. She came to this Court and  filed  Civil Appeal No.133 of 1986which is  still  pending hearing and  determination.  In  the meantime, she  has filed  and  prosecuted  numerous  interlocutory matters  complaining all  along that  her record of  appeal  has  been  unlawfully  interfered with  by  the court registry. She even obtained orders allowing her to replace the record of appeal with the record she believes  is authentic. One such  order was issued  on 10th March, 2009  giving  her 75 days to do so. Yes, she knows  her rights and  has a sense of seeking  redress, in her own way, for perceived violation of those rights. That is evident from the documents she has filed  in  court over time, including a bound volume  placed before us in this matter passionately narrating fears for her life  and  that of her son  as an explanation for the delay  in  presenting her matter before the court. We shall examine  that document shortly.

The  motion  before  the single  judge  was,  in  his  words “ina  state  of obfuscation”. We have examined it too  and  it is not easy to decipher. But the learned judge traced back  the history of the matter  and  was able to establish that  the application  before  him  sought to rescind an  earlier order made  by another single  judge  of this Court (Koome JA) on 12th July, 2012.  This,  G.B.M. Kariuki JA could  do under Rule 57(1)of the Court of Appeal Rules,  2010(the Rules) since Koome JA was absent as a resident judge in Nyeri.

The  application before  Koome  JA    had  been  filed  on  31st      May,  2010 seeking    “extension of time for  a  period of  three  months  to  withdraw wrong copies of memorandum and record of appeal and to file the right  copies from the judgment of the High Court of Kenya  in Divorce cause No.73 of 1985”.  It is Mrs. Adalja  who had  filed  that record of appeal on 22nd  May,  2009  with leave of the court. But she says there were defects in that record too which she blamed  on the court registry.    The application came  up  for hearing on  20th  September,2010  but Mrs. A  had lost her own copies and sought adjournment. It was relisted for hearing on 12th July, 2012.   When it came before Koome JA, on that date,  none  of the parties showed  up  and  the judge dismissed it  under  Rule 56(1)  of the Rules. In  doing  so, Koome JA was satisfied that both parties had been duly notified about the hearing of the application.

Nothing  happened   for  the  next  one  year  and  two months until  16 th September, 2013  when  Mrs. A  filed  the application to rescind Koome JA’s order. G.B.M.   Kariuki JA  examined the record before him,   the affidavits  on record  and   heard  the  submissions  of   Mrs.  A   and   counsel  for  the respondent but was not satisfied that there was any sufficient cause shown  for rescinding the order of Koome JA. He found  that the application was filed  way beyond  the 30 days  prescribed under  Rule 56  (4)of the Rules  and  there was no  explanation  for  that  delay.  Indeed,   in  his  finding,  Mrs. A  was  not candid and  did  not even disclose  when  she became aware about the dismissal of her application. He also  observed  from the record that  the hearing of the main   appeal  had  been  largely delayed  because  of  Mrs. A’s   conduct in pursuit of endless applications.

Mrs. A is now before us and she tells us that G.B.M.  Kariuki JA was wrong in  finding that her application was filed  late; that the main  appeal was not filed late and is validly before the court, which factor should have been considered; and that she had gone into hiding because of threats to her life and that of her son. She attributed the attempts to take her life to her husband, the Kenya Police and  other co­conspirators as documented in the “submissions on Appeal” referred to earlier. It  is  a  document that  is  as  incoherent  as  it is disjointed, but we gather the gist of it. Suffice  it to say that the document was not before G.B.M.  Kariuki JA and  therefore amounts to new evidence  contrary to Rule 55(2)of the Rules.

Rule 55of the Rules, which governs References to the full court states in relevant part as follows:­

“55.  (1) Where under  the proviso  to section 5 of the Act, any  person   being  dissatisfied   with  the  decision of  a singlejudge –

(a) ...................................................................................

(b) In any civil matter wishes to have any order,  direction or decision of a single judge varied, discharged or reversed  by the Court,he may  apply therefor informally to the judge  at the time when  the decision is given or  by  writing to the Registrar within seven    days thereafter.

(2)   At  the  hearing  by the  court of an applicationpreviously decided by a  single  judge, no additionalevidence  shall be adduced.”(Emphasis added.)

As stated earlier, a reference is not an appeal,although it is in the nature of one. The application before G.B.M.  Kariuki JA called  for the exercise  of the judge’s discretion which is unfettered and the full court can only  interfere with the exercise of discretion if it is shown  that in coming  to his decision, the single judge:

“.......misdirectedhimself in some  matter and  as a result arrived at a wrong  decision, or unless  it is manifest  from the case as a whole  that the judge  was clearly  wrong  in the exercise of discretion  and  that as a result  there has been  misjustice”  – see MBOGO  AND ANOTHER  VS.  SHAH [1968]  E.A 93. ”

The misdirection can take the form of the single  judge failing to take into account a relevant matter, or taking into account an irrelevant matter, or misunderstanding  some  aspect  of  the  law  touching  on the  matter,  or  the decision, in  all the circumstances, being  plainly wrong.  In sum,  the full court cannot simply arrogate itself the power to substitute its own discretion for that of the single  judge,  and the onus  is on  the applicant to satisfy the full  court that the single judge did not exercise his discretion judiciously.

We have considered the matter  fully but we are not satisfied that there was  any  error  in  principle in the manner in  which  the learned single  judge exercised  his  discretion.  Despite  the difficulty  in making  sense  out of  the records submitted by the applicant, the judge  admirably summarised the facts and  the issues  at  stake. The  judge considered whether  the  procedure was complied with in  issuing hearing notices. The judge  also considered the period of delay in seeking  the discretionary remedy and found  it inordinate. The judge further  considered the  conduct of  the applicant  in disclosing or failing to disclose material facts.He was acutely aware that the applicant was unrepresented and took that into account. All those were relevant factors in the matter before him, which the judge considered and  exercised his  discretion in accordance with  the  facts  and  applicable law   and   we  have  no  reason  to interfere, for none has been disclosed.

The only factor we may perhaps consider, which was not expressly considered, was whether there was any prejudice caused  to any  of the parties by the  dismissal  of  the  application.  We  find   none.  The dismissal  of  the application before G.B.M.  Kariuki JA meant that the application before Koome JA stood  dismissed. That application  merely sought extension  of time to file some amended  or missing documents in  the record of appeal.Whether  those were primary or secondary  documents is no  longer an issue after  the amendment to the Rules in  the  year 2010.   As  supplementary records may readily be filed  under the relevant Rules,  we find  no prejudice caused  to either party and no reason to delay any further the hearing and disposal of the main appeal which is on its 18th  year before this Court!

We dismiss this reference with costs to the respondent.

Datedand  delivered at Nairobi this 11thday  of July, 2014.

P.N. WAKI

............................

JUDGE OF APPEAL

M. WARSAME

.............................

JUDGE OF APPEAL

P.O. KIAGE

.............................

JUDGE OF APPEAL

I certify thatthis is atruecopy of the original

DEPUTY  REGISTRAR