Mbugua v Kihara & another [2023] KEELC 18681 (KLR)

Mbugua v Kihara & another (Civil Application E044 of 2023) [2023] KEELC 18681 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18681 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Civil Application E044 of 2023

JO Mboya, J

July 6, 2023

Between

Mathew Ngugi Mbugua

Plaintiff

and

Daniel Kanyi Kihara

1st Defendant

Peter Ngige Gacuru

2nd Defendant

Ruling

Background and Introduction 1. Vide Notice of Motion dated the April 14, 2023; the appellant/applicant herein, who is acting in person, has approached the Honourable court seeking the following reliefs;i.………………………………………………………………….Spent.ii.The honorable court be pleased to grant the applicant herein Leave to extend time within which to file their appeal.iii.Thehonorable court to waive the requisite fees which comes along with the filing of an Appeal out of time.iv.That pending Inter-Partes Hearing and determination of this Application, the honorable court be pleased to grant a temporary order of injunction restraining the defendants whether by themselves, their employees, servants or agents from doing any of the following acts that is to say, from advertising for sale, selling, whether by private auction or private treaty, disposing of or otherwise howsoever completing by conveyance or transfer of any sale concluded by auction or private treaty, leasing, letting, charging or otherwise howsoever interfering with L.R No. Dagoreti/Waithaka/156. v.Pending Inter-Partes hearing and determination of this Application; most humbly pray that this Honorable court be pleased to issue an order that all rents, monies collected from the tenants in L.R No. Dagoreti/Waithaka/156; to be deposited in the Honorable courts (sic) coiffures or with a person that the Honorable court in its wisdom may appoint to hold same.vi.The defendants do furnish the applicant with a current state of Accounts.vii.That the honorablecourt issue any such further or other orders as it may deem fit and in the interests of justice.viii.Costs of and occasion by this Application be in the cause.

2. The instant Application is premised on various grounds which have been alluded to and enumerated at the foot of the Application. Furthermore, the Application is supported by the affidavit of the appellant/applicant sworn on the April 14, 2023; and in respect of which the Appellant/Applicant has rehashed the very grounds which are enumerated at the foot of the Application.

3. Instructively, upon being served with the instant Application the respondents filed a replying affidavit and wherein same opposed and/or controverted the Application filed by the applicant herein.

4. Furthermore, following the filing of a replying affidavit by the respondents herein, the applicant soughtfor and obtained liberty to file and serve a Further supporting affidavit. For good measure, the applicant proceeded to and indeed filed a Further affidavit sworn on the June 12, 2023.

5. Be that as it may, it is worthy to state that the Application beforehand came up for hearing on the May 24, 2023, whereupon the appellant/applicant and the Learned counsel for the respondents agreed to canvass and dispose of the Application by way of written submissions. In this respect, it suffices to point that the applicant filed written submissions dated the June 12, 2023.

Submission by the parties Applicant’s submissions: 6. The Applicant filed written submission dated the June 12, 2023; and in respect of which the Applicant has raised, highlighted and canvassed various issues for consideration by the Honourable court.

7. First and foremost, the applicant herein has submitted that same entered into a Lease Agreement with the 1st respondent on the January 18, 2019; and that the Lease in question was to last for a duration of 5 years. In this regard, the Applicant has contended that the duration of 5 years was/is bound to lapse on the January 18, 2024.

8. Secondly, the applicant has submitted that even though the lease between himself and the 1st respondent was to last up to and including the January 18, 2024, the Respondents herein conspired and thereafter proceeded to and caused the applicant to be evicted from the demised premises, albeit without lawful cause and/or basis.

9. Nevertheless, the applicant herein contends that on the basis of the Lease, the Honorable court should find it appropriate and expedient and decree reinstatement of the Applicant onto the suit property, pending the hearing and determination of the current Application.

10. Thirdly, the applicant herein has submitted that the 2nd respondent is also keen to interfere with the rights and interests of the applicant herein and in this regard both respondents should therefore be restrained.

11. Premised on the foregoing, the applicant has therefore implored the Honourable court to find and hold that the Application beforehand is meritorious and should thus be allowed.

Respondents’ Submissions: 12. The respondents on their part have submitted that the Application beforehand is not only misconceived, but same is also bad in law and thus Legally untenable.

13. First and foremost, Learned counsel for the respondent has submitted that the applicant herein has since proceeded to and indeed filed a substantive Appeal vide Memorandum of Appeal dated the April 14, 2023; and in respect of which same is challenging the Ruling of the Senior Principal Magistrate rendered on the March 27, 2023.

14. To the extent that the Applicant has since filed a substantive Memorandum of Appeal, Learned counsel for the Respondents has pointed out that no Leave for extension of time ought to be granted, either as sought or at all.

15. Furthermore, Learned counsel for the Respondents has submitted that the premises in respect of which the Applicant and the Respondents transacted over, belongs to and is registered in the name of a Deceased person.

16. Consequently and in this regard, Learned counsel for the Respondents has therefore contended that no lawful dealings and/or transactions could have been undertaken over and in respect of the suit property.

17. In view of the foregoing, Learned counsel for the Respondents has therefore contended that the Application before the Honorable court is devoid of merits and hence ought to be Dismissed with costs.

Issues For Determination 18. Having reviewed and evaluated the Application dated the April 14, 2023; and upon consideration of the Response filed thereto and after taking into account the written submissions filed on behalf of the Parties, the following issues do arise and are thus germane of determination;i.Whether the Applicant herein is entitled to Leave to file an Appeal out of time, either as sought or otherwise.ii.Whether the Applicant herein ought to be granted waiver on account of payment of court fees pertaining to filing of an appeal or better still; whether the waiver sought for can issue ex-post-facto the filing of the Appeal.iii.Whether the court can grant orders pending Inter-Partes hearing at this stage or better still, whether the request for orders of Injunction pending inter-partes hearing are Legally tenable.iv.Whether this Honorable court is seized of the requisite Jurisdiction to entertain and/or adjudicate upon the Question of Accounts at this juncture and in any event; which was not the subject of the proceedings before the subordinate court.

Analysis and determination Whether the Applicant herein is entitled to Leave to file an appeal out of time, either as sought or otherwise. 19. The Applicant herein had hitherto filed civil proceedings before the Chief Magistrate’s court at Milimani vide Milimani CMELC No. E422 of 2022 and wherein the current Applicant had sued the Respondents pertaining to and concerning the question of possession and use of L.R No. Dagoreti/Waithaka/156.

20. Contemporaneously with the filing of the suit, the Applicant also filed an Application for Temporary Injunction and which Application was thereafter heard and disposed of vide ruling rendered on the 23rd March 2023.

21. For good measure, the trial magistrate, who heard the Application for Temporary Injunction did not find any merit therein and consequently the Application for Temporary Injunction was dismissed.

22. Arising from the impugned ruling, which was rendered by the trial magistrate, the Applicant herein felt aggrieved and dissatisfied; and same therefore proceeded to and filed a Memorandum of Appeal dated the 14th April 2023.

23. To my mind, the Memorandum of Appeal which was filed by and on behalf of the Applicant herein signaled the Applicant’s desire to prosecute the appeal and in particular, to challenge the impugned Ruling of the trial court.

24. Nevertheless, despite having filed an lodged the Memorandum of appeal, dated the 14th April 2023; the Applicant herein has now reverted to the court and same is seeking to be granted Leave to file an appeal out of time.

25. Be that as it may, it is not lost on this Honourable court that the Applicant herein has already filed and lodged an Appeal dated the April 14, 2023; and which Appeal was clearly filed within the statutory 30 days as provided for by section 79G of the Civil Procedure Act, Chapter 21, Laws of Kenya.

26. Based on the foregoing, the question that this Honourable court must address and deal with; is whether the Honourable court has the requisite Jurisdiction to grant Leave to file appeal out of time, yet there is in existence a duly filed a Memorandum of Appeal which has neither been withdrawn nor struck out by the court.

27. In this respect, I am afraid that for as long as the Memorandum of Appeal dated the April 14, 2023, remains on record, then no Leave can issue and/or be granted, for purposes of filing a second and/or further appeal, either as sought or at all.

28. Furthermore, assuming that the honourable court was to proceed and grant the Leave as sought, the question that will then arise is whether the grant of the Leave would operate to facilitate the filing of a second appeal or any other Appeal; over and in respect of the same Ruling and order.

29. To surmise, if the honourable court were to proceed and grant the Leave as sought, then what will arise would be a double filing of appeals relating to and in respect of the same subject matter; and same shall amount to an abuse of the Due process of the Honourable court.

30. In a nutshell, I am not disposed to grant an order, which ipso-facto would amount to an act in futility, if not vanity, noting that there is already an Appeal in existence, touching on and concerning the same subject matter.

Whether the Applicant herein ought to be granted waiver on account of payment of court fees pertaining to filing of an Appeal or better still; whether the waiver sought for can issue ex-post-facto the filing of the Appeal. 31. Other than the question wherein the applicant is seeking for leave to appeal out of time; the applicant is alsoapplying for waiver of the requisite fees which comes along with (sic) the filing of an Appeal out of time.

32. Be that as it may, I have pointed out herein before that there is already a Memorandum of Appeal and thus an appeal which has been filed by/on behalf of the appellant, in respect of the Ruling under reference.

33. To the extent that there is already an appeal, which has been duly filed in terms of the Memorandum of Appeal; there is no question of filing of an appeal out of time, which would attract payment of any court fees or otherwise.

34. Secondly and for good measure, it is also important to point out that the Memorandum of Appeal, which has been filed, could only have been filed upon payment of the requisite court fees and not otherwise.

35. As pertains to the timeline for payment of court fees, it is important to point out that court fees is required to be paid either at the same time as the lodgment/presentation of the documents or provided for by way of a General deposit. However, whichever way the court fees is provided for, it was incumbent upon the Applicant to pay the court fees upfront.

36. Contrarily, if a situation does arise, where the applicant and any other Citizen/ Litigant, is not able to pay for the court services, then the Applicant or such other Litigant must seek for and procure the Leave beforehand and not otherwise.

37. From my mind, the Applicant herein could not purport to file the Memorandum of appeal dated the April 14, 2023; and thereafter seek to approach the honourable court to validate the Appeal through waiver to pay (sic) the court fees ex-post-facto.

38. Suffices to point out that where a Party files a pleadings, albeit without the requisite court fees; then the defaulting Party cannot move the honourable court and purport to seek Leave to make payments over and in respect of the court process, for which no payment was made at the onset.

39. Clearly and to my mind, the Application by the Applicant seeking for waiver of court fees, at this juncture, is a nullity and incapable of procuring the orders sought. For good measure, it behooved the Applicant to procure and obtain the Waiver, if at all, beforehand.

40. To this end, it is instructive to adopt and reiterate the ratio decidendi in the case of Nicholas Kiptoo Arap Salat versus IEBC &others, Supreme Court Civil Appeal No. 16 of 2014 (2014)eKLR, where the supreme court stated and held as hereunder;“To file an appeal out of time and seek thecourt to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this court’s Registry. This is irregular as that document is unknown in law and the same should be struck out. Where one intends to file an appeal out of time and seeks extension of time, the much he can do is to annex the draft intended petition of appeal for the court’s perusal when making his application for extension of time; and not to file an appeal and seek to legalize it. Petition No. 10 of 2014 having been filed out of time and without leave (an order of this court extending time), is expunged from the court’s Record.”

41. Whereas the Supreme Court was dealing with an Appeal that had been filed out of time without Leave and thereafter leave being sought to validate same; the current scenario relates to an attempt to procure an order for waiver of fees long after the appeal had (sic) been filed without payment of the requisite court fees.

42. In my humble, albeit considered view, the decision of the Supreme Court applies mutatis mutandis to the situation obtaining before this honourable court and hence, the Appeal which was filed without payments of the requisite court Fees, is thus annulity. See the Decision and holding of the Court of Appeal in the case of South Nyanza Sugar Company Limited v Samwel Osewe Ochillo T/ A Ochillo and Company Advocates (2007) eklr.

43. Further and in addition, even assuming that the waiver being sought relates to the intended appeal to be filed out of time; it is worthy to recall that no such appeal can be filed out of time during the life time of the current appeal, which remains in existence, until and unless, same has been Withdrawn

44. Consequently and in view of the foregoing, I also come to the conclusion that the request for waiver of court fees is similarly an afterthought; misconceived and legally untenable.

Whether the Honourable court can grant orders pending Inter-Partes hearing at this stage or better still, whether the request for orders of Injunction pending inter-partes hearing are legally tenable. 45. The appellant/applicant herein has similarly sought for orders of temporary injunction and an order for the rents derivable from the suit property to be deposited with the Honourable court, pending inter-partes hearing.

46. It is important to underscore that the gist of the application by the Applicant herein is that the impugned orders of temporary injunction should be granted pending inter-partes hearing. However, it is instructive to recall that the subject application indeed came up for inter-partes hearing on the May 24, 2023 and when the parties agreed to canvass same by way of written submissions.

47. For good measure, the Application herein has since been canvased inter-partes and same is now due for determination vide the instant ruling.

48. Consequently, the question that does arise is whether the orders sought on the face of the current application and whose tenure is to last pending inter-partes hearing, can be granted ex-post the determination of the Application.

49. Sadly but with humility, I hold the view that the orders/prayers sought could only have issued on interim basis pending the hearing of the application. However, there ought to have been substantive reliefs to issue and/or be granted say; pending the hearing and determination of the appeal, which is not the case.

50. To my mind, the nature of orders being sought by and on behalf of the Applicant herein and which have been alluded to at the foot of the current Application, are actually overtaken by events and are thus redundant.

51. In the circumstances, it is my humble view that the orders which are sought by the Applicant pending inter-partes hearing were therefore not properly crafted nor tailor-made to deal with the futuristic situation pending the hearing and determination of the appeal.

52. Having not sought for the proper reliefs and/or remedies, there is no gainsaying that this honourable court cannot venture outside the four corners of the pleadings filed by the applicant herein and thereafter grant reliefs (sic) which have not been sought and/or impleaded.

53. Suffice it to reiterate that Parties, the Applicant not excepted; are bound by their pleadings and hence same cannot be allowed to travel yonder, albeit without first and foremost, seeking and obtaining Leave to amend.

54. In this respect, the position of the law is trite, established and hackneyed. For good measure, the holding in the case of Independent Electoral Boundaries Commission v Stephen Mutinda Mule (2014)eKLR, is succinct and apt.

55. For coherence, the Court of Appeal stated and held as hereunder;“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

56. Premised and founded on the foregoing position, the applicant herein cannot be dignified with orders and/or reliefs which were neither prayed for nor sought on the face of the subject Application.

Whether this Honorable court is seized of the requisite Jurisdiction to entertain and/or adjudicate upon the question of Accounts at this juncture and in any event; which was not the subject of the proceedings before the subordinate court. 57. Lastly, the applicant herein has also sought for an order of accounts, to be provided and/or tendered by the respondents.

58. However, it is instructive to point out that what is pending before this court is an appeal arising from the ruling and order of the trial magistrate which dismissed an Application for temporary injunction and not otherwise.

59. Additionally, it is worthy to reiterate that the question of accounts was neither canvassed nor ventilated before the subordinate court or otherwise. In this regard, there is no gainsaying that the Learned magistrate did not make any findings as pertains to the question of accounts.

60. Consequently and in my humble view, given that the question of accounts was never canvassed nor ventilated before the trial court, the issues of accounts cannot be escalated and placed before this court for hearing and determination. For good measure, this court is handling the subject matter on the basis of an appeal and hence same can only concern itself with questions that had been placed before the subordinate court in the first instance and which questions/ Issues, were dealt with by the trial court.

61. Furthermore, the memorandum of appeal, which constitutes the operative pleading before this honourable court does not raise and/or espouse the question of accounts. In this respect, it is also imperative to point out that the limb of the application touching on account is incongruous with the Memorandum of Appeal.

62. Finally, it is not lost on this court that where an applicant desires the taking of accounts, there must be in existence a primary suit wherein the question of accounts shall have been impleaded, prior to and before an order for the taking of accounts can be addressed by way of an interlocutory application.

63. Without belaboring the point, the circumstances and manner in which the question of accounts can be dealt with is well articulated and underpinned by the provisions of Order 20 Rule 1 of the Civil Procedure Rules2010.

64. In the circumstances, I come to the conclusion that even the prayer for accounts, which is the substantive prayers in the body of the Application by the Appellant/Applicant is legally untenable; and otherwise outside the scope and mandate of this court, whilst entertaining the subject appeal.

Conclusion and final disposition 65. Though the Applicant herein is acting in person and may not have received appropriate Legal counsel, there is no denying that the applicant, just like other Litigants; is called upon to comply with and/or adhere to the provisions of the law.

66. Further and in addition, it is not lost on this court that each and every person is equal before the law and is therefore entitled to equal protection and benefit from the law. See article 27(1) of the Constitution of Kenya 2010.

67. Further and in any event, I am also alive to the position of the law which postulates that the ignorance of the law cannot be a defense. In this respect, I am afraid that the applicant cannot implead the fact that same is a lay person or otherwise.

68. In a nutshell, the Application dated the 14th of April 2023, is premature, misconceived, bad in law and legally untenable. In this regard, same be and is hereby Dismissed, albeit with no orders as to costs.

69. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS6th DAY OF JULY 2023. OGUTTU MBOYAJUDGE.In the Presence of;Benson Court AssistantMr. Mathew Ngugi – Appellant Applicant appearing in Person.Mr. Ongagi for the Respondents.