Ramadhan Abdullai Odhiambo v Mary Alima Akong’o Rachier (suing as the legal representative of the estate of Adija Onyicha Sat) [2019] KEELC 776 (KLR) | Extension Of Time | Esheria

Ramadhan Abdullai Odhiambo v Mary Alima Akong’o Rachier (suing as the legal representative of the estate of Adija Onyicha Sat) [2019] KEELC 776 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KISII

ELC NO. 297 OF 2019

RAMADHAN ABDULLAI ODHIAMBO..............................................................PLAINTIFF

VERSUS

MARY ALIMA AKONG’O RACHIER (suing as the Legal representative of the estate of

ADIJA ONYICHA SAT).......................................................................................DEFENDANT

R U L I N G

1. Before me for determination are two applications. The first application is the one dated 22nd March 2019 filed by the plaintiff /applicant on 25th March 2019. By this application the plaintiff seeks the following substantive orders:-

3. Pending the Inter-parties hearing of this application, the Honourable Court be pleased to grant Interim orders of injunction for stay of execution of the Court Judgment and Degree dated the 6th day of October 2017.

4. That the Honorable Court be pleased to grant leave to the applicant to file Notice of Appeal and Record of Appeal out of time in the intended appeal from the judgment of S.O Okongo at the High Court of Kenya at Kisii being ELC No.297 of 2010.

2. The second application dated 23rd April 2019 filed on 24th April 2019 is by the defendant and seeks orders for the forceful eviction of the plaintiff from the land parcel LR Kanyamwa/Kayambo/Kwamo/2101 in execution of the judgment and the decree of the court given on 6th October 2018.

3. The parties on 13th May 2019 agreed, to canvass both applications by way of written submissions. Both parties filed their submissions on 8th July 2019.

4. The plaintiff in support of his application averred that following the delivery of the judgment in this matter he instructed his former advocates M/s Zablom Mokua  & Company Advocates  to file an appeal  against the judgment and to also make an application for stay of execution of the decree  and judgment.

5. He stated the said advocates did not file a Notice of Appeal or file any application for stay of execution though he had paid the requisite fees to them. The plaintiff  further  stated  the defendant had taken out warrants of  attachment  in execution  of the decree yet  he had  proper  grounds of appeal  with chances  of success. The plaintiff vide the affidavit sworn  in support  of the application stated that he came to discover that his advocates  had not filed the appeal as he had instructed  them to do, when he was served with  the proclamation notices issued in execution of the decree which  prompted  him to  peruse the Court  file.

6. The plaintiff averred that he had acted promptly in giving his advocate instructions to lodge an appeal and that he was let down by the advocates who failed to act on his instructions. The plaintiff pleaded that the mistakes of his counsel ought not to be visited on him. In regard  to stay of execution  the plaintiff  averred that he had an arguable  appeal  that  had  high chances of succeeding .

7. The defendant decree holder in response to the plaintiff’s application for enlargement of time to file a Notice of Appeal and for stay of execution filed a replying affidavit sworn on 23rd April 2019 in opposition. The the defendant averred that this court lacked jurisdiction to extend  or enlarge time for filing of Notice of Appeal, memorandum or Record of Appeal  as that was the preserve  of the Court of Appeal. I might  as well dispose  the issue whether  this court has jurisdiction to enlarge time for filing  of a Notice  of Appeal at this point as it is rather straight  forward  that indeed the court had  jurisdiction by virtual  of section 7 of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya which  provides as follows: -

“ The high Court may extend  the time forgiving notice of intention to appeal  from a judgment of the High court or for making an application for leave to appeal  or for a certificate that the case is but for appeal, notwithstanding  that the time forgiving  such notice or making such appeal nay have already expired. Provide that  in the case of a sentence of death no extension  of time shall be granted after the issue  of the warrant for the execution of that sentence”

8. The power to extend time is discretionary and must be weighed against the circumstances of each case. The considerations in exercising the discretionary would include the reasons for any delay and whether the applicant acted diligently. If the delay is inordinate and unexplained the court will refuse to allow extension. Equally if the applicant failed to exercise diligence in the pursuit and /or conduct of his case the court will decline to allow extension of time.

9. In the present matter the plaintiff/applicant merely states  following  the delivery  of the judgment on 6th October 2017 he  instructed his advocate  to lodge an appeal against the judgment and on 13th  October 2017 he paid a  deposit of Kshs20,000/= to his advocates allegedly for appeal purposes. The copy of the receipt annexed as “RA01” denotes the payment as being an account of “case 297/2010” and does not indicate it was for purposes of appeal meaning it could as well been payment on account of balance of fees. The plaintiff did not give the advocates written instructions to lodge an appeal. The judgment that had been rendered had required the plaintiff to vacate and deliver vacant possession of plot No.2101 to the defendant within a period of 90 days from the date of judgment failing which the defendant was granted liberty to apply for warrants for the forceful eviction of the plaintiff from the property. The plaintiff was thus aware of the consequences that awaited him if there was noncompliance with the judgment barring any stay of execution and/or appeal.

10. If the plaintiff had indeed instructed  his previous advocates to file an appeal  he never made any follow up with them as he  deponed that he realized nothing was done by the advocates  when the auctioneers proclaimed his movable properties in execution of the judgment. The proclamation was effected on 15th March 2019 well over 1½ years from the date the judgment was delivered. It is clear that the plaintiff was only awoken from his slumber by the execution proceedings that the defendant had initiated as she was entitled to do. The court record does not show that any action was taken by the plaintiff’s advocates to initiate the process of appeal like applying for copy of proceedings and or filing a Notice of Appeal. It appears to me that the plaintiff’s action in filing the present application was a reaction to the execution proceedings and/or was an afterthought.

11. I do not consider that the plaintiff has given the court reason to justify the delay in taking the appropriate action to initiate the process of filing of his appeal in the Court of Appeal. The plaintiff’s  conduct  after the delivery  of the judgment is not that of a person who had acted diligently in pursuing  the conduct  of his case  which he had entrusted  to an advocate .

12. In the  plaintiff’s case he was aware of the judgment delivered  on 6th October 2017 which had far reaching consequences  against  him yet  for  1½ years he never bothered to find out the status of  the appeal that he alleged had instructed  the advocates to file  on his behalf. One is let wondering what would have happened if the defendant had not taken steps to execute the judgment. The plaintiff had a duty and indeed obligation to pursue his advocates to ensure they executed his instructions. That he failed to do so, he has only himself to blame and/or he can pursue his erstwhile advocates in a negligence claim if indeed he can establish such a cause of action.

13. On the basis  of the material  placed before me I am not persuaded  I should exercise  my discretion  in favour of the plaintiff to extend  time for filing a Notice of Appeal. Consequently I find no merit in the notice of Motion dated 22nd

March 2019 and I accordingly order the same dismissed with costs to the defendant.

14. Having found no merit  in the plaintiffs application dated 22nd March  2019 which sought stay of execution of the judgment and Decree of the Court dated 6th October  2017, it follows I have  to allow the defendant’s application dated 23rd April 2019 which seeks execution of the court’s judgment and decree. The defendant’s said application merely seeks enforcement of the judgment of the Court and there being no order staying the execution of the judgment and decree, the defendant is entitled to the fruits of the judgment made in her  favour. I allow the defendant’s application in terms of prayers 1, 2, and 3 of the Notice of Motion dated 23rd April 2019.

15. Orders accordingly.

JUDGMENT DATED AND SIGNED AT NAKURU THIS 29TH DAY OF OCTOBER 2019.

J. M. MUTUNGI

JUDGE

JUDGMENT DELIVERED AT KISII THIS 7TH DAY OF NOVEMBER 2019.

J M ONYANGO

JUDGE