Peter Kaeka Mutie & Dama Tours & Safaris Company Ltd v Patricia Ndunge Mwanzia [2021] KEHC 12982 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CIVIL APPEAL NO. E002 OF 2020

PETER KAEKA MUTIE.............................................1ST APPLICANT

DAMA TOURS & SAFARIS COMPANY LTD.......2ND APPLICANT

VERSUS

PATRICIA NDUNGE MWANZIA ...............................RESPONDENT

RULING

1. On 25th February, 2021, this Court dismissed the Aopplicants’ application in which they were seeking stay of execution of the judgement delivered in Kithimani PMCC No. 404 of 2018. In arriving at the said decision the court found that it was not contended that the Respondent would not be in a position to refund the decretal sum.

2. By an application dated 12th March, 2021, the Applicants seek stay of the same judgement and leave to file the notice of appeal to the Court of Appeal out of time. The application which was dismissed and from whose order the applicants intend to appeal to the Court of Appeal was substantially made pursuant to Order 42 Rule 6(1), (2) and (3) of the Civil Procedure Rules.

3. Order 43 of the Civil Procedure Rules deals with appeals from orders and specifies the order from which an appeal automatically lies to the Court of Appeal. Order 42 Rule 6(1), (2) and (3) of the Civil Procedure Rules is not one of those orders from which an appeal lies as of right to the Court of Appeal. Order 43 Rule 1(2) of the Civil Procedure Rules provides as follows:

An appeal shall lie with the leave of the court from any other order made under these Rules.

4. What the foregoing provisions provide is that for the Applicants to appeal to the Court of Appeal, they ought to seek leave to do so. However, Order 43 Rule 1(3) of the Civil Procedure Rules provide that:

An application for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.

5. Therefore, the Applicants ought to have made the application for leave by latest 14 days of the order sought to be appealed against. Having not done so, it follows that the applicants will have to seek extension of time to make such an application.

6. It follows that not only are the applicants out of time to file a notice of appeal, but that they are also out of time to apply for leave to appeal. To my mind, without leave to appeal, any notice of appeal is bound to be incompetent. In George Vuhuga Kidula vs. James Kidula Civil Application No. Nai. 148 of 1998, Omolo, JA held that there is no point in extending time for filing an appeal if leave to appeal has not yet been obtained. Similarly, Lakha, JA in Gabriel Oduori Onyango vs. Attorney General Civil Application No. Nai. 176 of 1995 held that if an appeal does not lie due to lack of leave, there is no point in extending time to appeal.

7. It is clear that the application herein faltered and took mis-steps leading to procedural irregularities which are yet to be corrected. It seems that the applicants have completely failed to get their act right. Having considered the issues raised herein, I find that whereas any one of the foregoing errors and omissions may, taken alone, be capable of being cured, the several errors disclosed in the application constitute a comedy of errors and omissions which cannot be excused.  See Masefield Trading (K) Ltd. vs. Francis M Kibui Nairobi (Milimani) HCCC No. 1796 of 2000 [2001] 2 EA 431.

8. In the premises, I find the application dated 12th March, 2021 incompetent and the same is struck out with costs to the Respondent.

9. It is so ordered.

Read, signed and delivered virtually at Machakos this 3rd day of June, 2021.

G V ODUNGA

JUDGE

In the absence of the parties.

CA Geoffrey