Ondogi v Nyamote [2022] KEHC 9837 (KLR)

Ondogi v Nyamote (Civil Appeal 63 of 2020) [2022] KEHC 9837 (KLR) (12 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9837 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Appeal 63 of 2020

REA Ougo, J

July 12, 2022

Between

Julius Nyamweya Ondogi

Applicant

and

George Mokua Nyamote

Respondent

Ruling

1. On the 4th November 2021 this Court granted the Appellant 14 days to file and serve a Supplementary Record of Appeal in default the appeal would stand as dismissed. The matter was set for mention on the 22nd November 2021to confirm compliance.

2. On the 22nd November 2021 having noted that the Appellant had not complied with the court’s order of 4th November 2021, the court noted that there was no appeal as the Appellant had failed to comply with its order of 4th November 2021 within the given timeline.

3. On the 11th November 2021 the Court noted that an application dated 8th November 2021 had been filed. The Court ordered that the same to be served for inter parties hearing on the 22nd November 2021. This application came up for hearing on the 22nd November 2021, when the Court noted that its order of 4th November 2021 had taken effect.

4. The court records shows that the application dated 8th November 2021 sought to have a stay of execution of the decree in Hccc No. 410 of 2019 deferred on the 20th January 2020 pending the hearing and full determination of the appeal in Hcca No. 63 of 2020. The Applicant also sought to have the court accept its offer of security in the form of a suitable bank guarantee from a reputable financial institution to secure the judgement.

5. The Appellant/ Applicant despite being aware of the court order dated 4th November 2021 sought not to have time extended to have his Supplementary Record of Appeal but instead sought a stay of execution. This application therefore was of no value to the Applicant.

6. After the dismissal order, the Applicant subsequently filed the Application dated the 23rd November 2021 seeking to have an order of stay of execution of the Court’s Ruling issued on the 20th January 2022 and to have the appeal reinstated. The Applicant explains that the Record of Appeal had been filed by the 27th May 2021 but he noted that the said record did not have the Plaintiff’s submissions and that despite its relentless efforts, he was unable to get the Supplementary Record of Appeal filed on time and that the dismissal order exposes the Applicant to imminent execution. The Applicant further explains that the delay in filing the Supplementary Record of Appeal has not been the fault of the Applicant/Appellant but that the same was occasioned by the oversight occasioned by the improper hand over of the file. The Applicant pleads that the mistakes and oversight of an advocate should not be visited upon the client and that the appellant has been keen on prosecuting his appeal. The application was opposed.

Replying affidavit 7. I have considered the contents of the affidavits filed by the parties, the oral submissions by counsels and the law.The Appellant’s counsel admits that the delay in filing the Supplementary Record of Appeal was due to an omission in their office. The Respondent denies all this. Clearly the mistake in failing to comply with the court order of 4th November 2021 is because of an omission of the Appellant’s counsel. I will not punish the Appellant for mistakes or omissions done by his counsel. A Record of Appeal had been filed and only Plaintiff’s submissions were left out. The Appellant is keen on pursuing the appeal.

8. I therefore set aside the order dismissing the appeal and reinstate the appeal for hearing and determination.A stay of execution shall issue on the following terms:1. The Appellant shall pay the Respondent a sum of Kshs. 100,000/= (Kenya Shillings One Hundred Thousand) within 30 days and the balance of the decretal sum shall be deposited in a joint interest earning account in the names of the counsels within 30 days and in default execution to issue.2. The Applicant to file and serve the Supplementary Record of Appeal within 21 days from the date of this ruling. Mention on the 27/9/2022 for directions on the appeal.3. The Respondent is awarded costs of this Application.

DATED, SIGNED AND DELIVERED AT KISII THIS 12TH DAY OF JULY 2022. R.E. OUGOJUDGEIn the presence of;Mr. Ng’ang’a For the AppellantMr. Oremo For the RespondentMs Aphline Court Assistant