Peterson Gichohi, Leah Wanyara Gichohi & Leah Wambui Gichohi v Maina Johana Miano Alias Joseph Miana Miano [2016] KEELC 1076 (KLR) | Abated Appeals | Esheria

Peterson Gichohi, Leah Wanyara Gichohi & Leah Wambui Gichohi v Maina Johana Miano Alias Joseph Miana Miano [2016] KEELC 1076 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC CIVIL APPEAL NO. 14 OF 2015

PETERSON GICHOHI ………………............................................…… APPELLANT

-VERSUS-

MAINA JOHANA MIANO Alias JOSEPH MIANA MIANO ………. RESPONDENT

AND

LEAH WANYARA GICHOHI

LEAH WAMBUI GICHOHI ………..…................................................… APPLICANTS

RULING

1. This ruling is in respect of the notices of motion dated   26th March, 2015 and 27th March, 2015.

2.  Through the notice of motion dated 26th March, 2015,  the firm of P.K. Njuguna & Company Advocates      (hereinafter referred to as the incoming advocate) seeks leave to come on record in place of M/S Munene   Muriuki & Company Advocates (hereinafter referred as   the outgoing advocate) on behalf of Leah Wanyara     Gichohi and Leah Wambui Gichohi (hereinafter called      the applicants).

3. The application is premised on, among other grounds, that the applicants are desirous of acting through the   incoming advocate.

4.   The application is supported by the affidavit of the   applicants sworn on 26th March, 2015 in which the    applicants have reiterated their desire to proceed with Nyeri Civil Appeal No.8 of 1973 (abated) through the  incoming advocate.

5.  The application is accompanied by a consent executed  between the outgoing Advocate and the incoming      Advocate.

6.   Because the outgoing advocate has executed a consent   in favour of the incoming advocate, the application is   unopposed.

Analysis and determination:

7.     This being an application for change of advocate after judgment, it is governed by the provisions of Order 9 Rule 9 of the Civil Procedure Rules which provides as   follows:-

“When there is change of advocate, or when a party    decides to act in person having previously engaged    an advocate, after judgment has been passed, such change or intention to act in person shall be    effected by order of the court-

a)   upon an application with notice to all the    parties; or

b)  upon a consent filed between the outgoing   advocate and the proposed incoming advocate  or party intending to act in person as the case    may be.”

8.  As pointed out above, in the circumstances of this case,   in compliance with the provisions of Order 9 Rule 9   sub-rule (b), the incoming advocate and the outgoing      advocate executed a consent allowing the incoming      advocate to come on record in place of the outgoing   advocate.

9.   Under Order 9 Rule 9 supra, an application for leave to   come on record after judgment is only required where the consent contemplated under sub-rule (b) has not       been obtained and filed.

10.   In the circumstances of this case, where the incoming advocate had obtained leave to come on record in place     of the outgoing Advocate, the application contemplated in Order 9 Rule 9(a)was not necessary. Be that as it may, there being no prejudice occasioned on the parties  by the application, I allow it as prayed.

11. Vide the application dated 27th March, 2015 the  applicants seek to:-

a)    substitute the appellant, Peterson Gichohi    (deceased);

b)    set aside and/or vacate an order issued on 21st July, 2009 marking the appeal herein as abated;

c)     revive the appeal herein;

d)   stay the execution of the orders, judgment and/or   decree of the lower court, issued in Kerugoya Civil   Appeal No. 2 of 1972.

12.   The application is premised on the grounds that the applicants are the administrators of the estate of   Peterson Gichohi (hereinafter referred to as the deceased person); that before he passed on, the deceased person had preferred an appeal against the  decision issued in Kerugoya District Court civil Appeal    No. 2 of 1972; that the deceased person passed on   before the appeal was heard and determined and that   the appeal touches on a parcel of land bought by the deceased person and on which the applicants have   been in possession and occupation since 1959.

13.   It is pointed out that the appeal abated on 1999  following the passing on of the deceased person and   was marked as having abated on 21st July, 2009.

14.   Explaining that owing to a mistake on the part of their  previous advocates, the deceased person was not  substituted, the applicants’ contend that unless the   orders sought are granted, the respondent may execute   the decree appealed from and occasion them irreparable damage and prejudice.

15. The application is supported by the affidavit of the   applicants, sworn on 27th March, 2015 in which the      grounds on the face of the application are reiterated.

16.   In opposing the application, the respondent, Maina  Johana Miano alias Joseph Maina Miano, filed the affidavit he swore on 4th June, 2015. In that affidavit, the respondent contends that the Civil Procedure Rules do not provide for revival of abated appeals; that no   sufficient reason has been given why the deceased    person did not prosecute the appeal during his lifetime  and that there has been inordinate delay in bringing the  application for revival of the abated appeal and  substitution of the deceased person.

17. Terming the application fatally defective and aimed at   delaying the conclusion of the matter, the respondent   urges the court to dismiss it with costs to him.

18. The application was disposed of by way of written   submissions.

Applicants’ submissions

19.   In the submissions filed on behalf of the applicants, a   brief background of the circumstances leading to filing  of the application is given and submitted the following   factors identified as the factors which should guide the   court in considering the application:-

a)     The substance of the litigation;

b)     The constitutional dispensation;

c)     Delay in bringing the application  and

d)     The cause of the delay.

20.   Based on the decision in the case of Issa MasudiMwabumba v. Alice Kavenya Mutunga & 4 others  (2012) e KLR where  Koome J.A, inter alia, stated:-

“…The principles to guide the court on the exercise    of judicial discretion to extend time or to revive a    suit are similar and they have been articulated in a   long line of authorities. See the case of; Leo Sila        Mutiso vs. Rose, CA NAI 255 of 1997 (unreported)   ….Besides the principles set out in the case of Leo  (supra), I am also guided by the provisions of Section 3A and 3B of the Appellate jurisdiction Act  otherwise known as the oxygen principle. Stemming   from the overarching objectives in the   administration of justice the goal at the end of the day, the court attains justice and fairness in the  circumstances of each case. This is the same spirit   that is envisaged as the thread that kneads through   the Constitution of Kenya, 2010 in Article   159…..Bearing in mind those overarching  objectives, this appeal deserves to be revived for the following reasons: firstly, the appellant was    acting in person when he filed the appeal. Secondly,   an advocate was instructed but he did not take the   necessary steps to revive the appeal; athough no    reasons have been given for the advocate’s failure,   his failure or mistakes cannot be attributed to the   applicant. Thirdly, the applicant has a limited grant   of letters of administration in respect of the  deceased’s estate. Although the limited grant gives   the applicant power to file a suit, that power can also be construed to include prosecuting an appeal. The fourth reason for allowing the revival of the suit is for reasons that the dispute involves ownership    of land and a durable solution to that addresses the     substantive issues is always better option.

The respondents’ complaint that this matter has  taken several decades and in particular, this application was made after two (2) years and eight  (8) months had passed are valid concerns. It is also obvious the respondents will continue to be inconvenienced by the prolonged litigation, but in   my humble view, that is the price one has to pay   while defending their rights and the prejudice can   be compensated by costs…”

counsel for the applicants has submitted that the   principles espoused in that case apply to this case.

21.   Arguing that the applicants have explained the delay in   bringing the application for revival of the appeal and the   application for substitution of the deceased person    (delay attributed to the applicants’ ill health, lack of   proper legal advice, confusion due to other litigation associated with the dispute herein), counsel for the  applicants submits that it will only be fair to give the applicants a chance to have the issues raised in the  appeal determined on their merits as opposed to on technicalities.

22. On the merits of the appeal, it is submitted that the appeal was filed by a person who was not a party to the initial proceedings; that the fact of the applicants’ possession of the suit property was not considered and  that the issue of the law applicable to the transaction in   question was not considered.

23.   Maintaining that it is fair and just, in the circumstances of this case, to revive the appeal for the purposes of  being heard on its merit, counsel for the applicants urges this court to revive the application, substitute the   applicants in place of the deceased person and to order a stay of the orders issued in the lower court in order to protect the suit property pending the hearing and   determination of the appeal.

24.   With regard to costs of the application, counsel for the applicants urges the court to order that they abide the outcome of the appeal or made any other order in   respect thereof as it may deem fit and just to grant.

Respondent’s submissions

25.   On behalf of the respondent, a brief overview of the   applicants’ case is provided and submitted that from the authorities cited by the applicants, its trite law that the   power to revive an abated Appeal is a matter of judicial   discretion and that under provisions of Order 24 Rules  3(2) and 7(2) of the Civil Procedure Rules, 2010, a   person seeking to revive an abated suit/appeal must prove that they were prevented by a sufficient cause     from continuing the suit.

26.   It is further submitted that in considering an application    for revival of an abated suit/appeal, the court is guided  by such principles as the length of delay, reason for delay, the chances of the appeal succeeding if the application is granted and degree of prejudice to the    respondent if the application is granted.

27.   Explaining that the appeal herein was preferred in 1973   and that it abated on 23rd September, 2009, counsel for   the respondent has submitted that there has been   inordinate delay in bringing the application for revival of    the suit and substitution of the applicants (a delay of    fourteen and half (14 ½) years).

28.   Counsel for the respondent blames the delay in revival   of the suit and substitution of the applicants on the  conduct of the applicants of bringing parallel  proceedings instead of pursuing the appeal. He  maintains that there has been inordinate delay in bringing the application for revival and substitution of   the deceased person and that the delay has not been    properly explained.

29.   The application is also said to be bad in law because    the applicants have not applied for extension of time   within which to apply for substitution of the deceased      person.

30.   As for the authorities cited in support of the applicants’ case, counsel for the respondent has submitted that they are distinguishable because the delay in those   cases ranges from two to five years, while the delay in the instant case is nearly 15 years.

31. For the foregoing reasons, it is submitted that the   respondent will highly be prejudiced if the orders sought   are granted.

Analysis and determination

32.   I have read and considered the pleadings filed in this  application and the submissions made in respect   thereof.

33. The main issue for determination is whether the  applicants have made up a case for revival of the      abated appeal. This is so because, unless the appeal is revived, there will be no basis for considering the other   issues raised in the application.

34.   With regard to this issue, it is common ground that  there has been inordinate delay in bringing the       application, the same having been brought nearly 15   years from the time the appeal abated.

35.   Whilst acknowledging that this court has discretion to   revive a suit that has abated, counsel for the respondent has submitted that the delay in bringing the application   for revival of the appeal herein is not only inordinate but   also not properly accounted for.

36.   Referring to the cases cited by the applicants’ in support   of their application to wit:-Issa Masudi Mwabumba v.  Alice Kavenya Mutunga & 4 Others (2012)e KLR;  Gachihi Wang’ombe v. James Muriuki Maina & Another (2011) e KLR; Njonjo Njubi v. Njubi  Karungari (2013)e KLR; Rosemary Bunny v. Gichuru   Kamotho (2005) e KLR Geoffrey Mwangi Kihara v. Mwihoko Housing Company Ltd & 3 others (2015) e   KLR; and M’Mucheke Kiraithi v. Tyres Mbae Kiraithe  & Another (2009) e KLR, counsel for the respondent  has submitted that the circumstances of this case and    the circumstances which obtained in those cases are   different. In that regard, he argues that the delay in  those cases was not as in ordinate as the delay in the    instant case.

37.   Whereas it is true that the period of delay in the cases cited by the applicants is less compared to the delay in   the instant case, upon reading and considering the application alongside the principles espoused in the   cases cited by the applicants’ advocate and in particular   the case of Issa Masudi Mwabumba v. Alice Kavenya   Mutunga & 4 Others (supra) , I hold the view that the  delay, though inordinate, has been adequately  explained in that the applicants who were all along  represented by advocates were misadvised on how to approach the dispute between them and the  respondent. Bearing in mind the special circumstances  of this case, the applicants are in occupation of the suit  property and have been in occupation for over four   decades, I hold the view that it is in the interest of   justice to have the issues raised concerning the suit property, and which issues I find to be arguable, heard   and determined on their merit.

38.   With regard to the prayer for setting aside the order declaring the appeal as abated, being of the view that   the appeal should be revived to enable the issues in  dispute between the applicants and the respondent   heard and determined on their merits and for the  purpose of giving efficacy to the order for revival of the   abated appeal, I hold the view that it is necessary to set aside the orders declaring it as having abated in order to avoid a situation where there are contradictory orders   concerning the appeal, I set aside/ vacate the order    declaring the appeal as abated.

39.   On whether the applicants should be substituted for the  deceased, despite there being no application for     extension of the time within which the application for substitution, as contemplated under Order 50 Rule 5,  being of the view that the applicants are necessary   parties for the purpose of assisting the court to  effectually hear and determine the issues raised in thisappeal, using the power given to this court under Section 3A of the Civil Procedure Act, for purposes of  giving effect to the overriding objective of the court    under Article 159 of the Constitution as read with   Section 1A and1B of the Civil Procedure Act, I, of my own motion, enlarge the time within which an application for substitution of the applicants ought to have been made and treat the prayer for substitution to  be premised on an application for enlargement of time,    which I hereby grant.

40.   On whether this court should order for stay of execution   of the orders issued in the decree appealed from, owing    to the inordinate delay in bringing the application for  stay and cognizance of the fact that a similar prayer was       sought and denied by a court of competent jurisdiction,   I find and hold the prayer to be res judicata. Be that as it  may, bearing in mind the special circumstances of this   case, and to be specific, the fact that the applicants are  in occupation of the suit property, I find and hold that the   order that recommends itself in the circumstances of   this case is an order for   maintenance of status quo.

41.   As for costs, bearing in mind the manner in which the applicants have conducted themselves in prosecuting   this matter, I condemn them to pay the   costs of the    application.

42.   The upshot of the foregoing is that the application dated  27th March, 2015 is allowed in terms of prayers 2, 3,  and 4. In lieu of the order of stay sought in prayer 5 and    6, an order of maintenance of status quo shall issue  pending the hearing and determination of the appeal.

43.   To ensure that the appeal is heard and determined   without further delay, the applicants are ordered to    ensure that the appeal is heard and determined within a   period of one (1) year from the date of this ruling failing   which, the orders issued in favour of the applicants shall   stand vacated.

Orders accordingly.

Dated, signed and delivered at Nyeri this 1st day of March,  2016.

L N WAITHAKA

JUDGE

In the presence of:

Mr. P.K. Njuguna for the applicant

Mr. Machira h/b for Mr. Kahiga for the respondents

Court assistant - Lydia