1. This ruling results from two applications, both presented by the Applicant. The first application is dated 11th July, 2024 and the second one 13th August, 2024.
The Notice of Motion dated 11th July, 2024.
2. The application is expressed to be brought under Sections 3A, 79G and 95 of the Civil Procedure Act, Cap 21 Laws of Kenya and Article 159 of the Constitution and all other enabling provisions of the law and seeks the following orders:
1. [Spent].
2. THAT the court be pleased to extend time within which to lodge an appeal.
3. THAT this Honourable Court be pleased to grant leave to the Applicant to appeal against the Judgement delivered on 30th May, 2024.
4. THAT the court be pleased to stay the execution of the decree pending the hearing of this application.
5. THAT the court be pleased to stay the execution of the decree pending the hearing of the intended appeal.
6. THAT an interim injunction do issue restraining the Respondents either by themselves, their servants and/or agents or anyone whosoever claiming title, deriving authority or acting on their behalf from entering, constructing, building, selling or disposing, transferring, erecting on land parcel No. Kisumu/Korand/4574 pending the hearing and determination of this application.
7. THAT an interim injunction do issue restraining the Respondents either by themselves, their servants and/or agents or anyone whosoever claiming title, deriving authority or acting on their behalf from entering, constructing, building, selling or disposing, transferring, erecting on land parcel No. Kisumu/Korand/4574 pending the hearing and determination of the Applicant’s intended appeal.
8. THAT costs of this application be costs in the cause in any event.
3. The grounds upon which the Motion is premised are set out on the face of the application as follows:
a. THAT the Civil Procedure Rules require that leave be granted before one can exercise his right of appeal.
b. THAT it is necessary that the said leave be granted so that the Applicant will finally lodge the appeal.
c. THAT the Applicant was not informed of the judgement or the outcome of his cases until 3rd July, 2024.
d. THAT the Applicant is about to be denied his rights of access to justice under Article 48 and right to a fair hearing under Article 50.
e. THAT the Applicant has a strong and meritorious appeal.
4. The application is supported by the affidavits of Alfred Ojiambo Juma and Teddy Omondi Nyanjom, Advocate, both sworn on 11th July, 2024. The two affidavits expound on the above grounds.
5. The application is opposed and to that end the 2nd Respondent filed an affidavit sworn on 26th August, 2024 by its legal officer Boniface Machuki.
6. The motion was first placed before my sister Shariff J on 16th July, 2024 ex parte whereby the court pronounced itself as follows:
RULING
1. I have considered the Applicant’s Notice of Motion dated 11th July, 2024, the supporting affidavit sworn by Alfred Ojiambo Juma of even date and I note that the impugned judgement was delivered on 30th May, 2024 wherefore there is no urgency demonstrated given that the failure by the Applicant to get timely updates from his Advocates is not a ground upon which this court can certify the application as urgent.
2. The above finding notwithstanding, I will grant the Applicant prayer No. 6 and I order that an interim injunction to issue restraining the Respondents whether by themselves, their servants and/or agentsor anyone whomsoever claiming title, deriving authority or acting on their behalf from entering, constructing, building, selling or disposing, transferring, erecting on the land parcel No. Kisumu/Korand/4574 pending the hearing of this application inter partes.
3. The Applicant is directed to deposit a bank guarantee of Ksh.2,000,000/- in court within 30 days from the date hereof failure to which the interim orders will automatically lapse.
4. The Applicant is directed to serve this application within 2 days from the date hereof.
5. The Respondents are directed to serve their responses within 10 days from the date hereof.
6. The Applicant is granted leave to file a supplementary affidavit, if need be, simultaneously with his submissions within 18 days from the date hereof and the Respondents to file their respective submissions within 26 days from the date hereof.
7. Mention on 15th August, 2024 before the duty court to confirm compliance and take a mention date before High Court No.1.
M.S. SHARIFF
JUDGE
7. It would appear that the Applicant was not contented with the orders issued by Shariff J, particularly the condition set requiring that the Applicant deposits a bank guarantee of Ksh.2,000,000/- within 30 days. The Applicant then filed the application dated 13th August, 2024 in which the substantive prayer sought was for review of the orders of 16th July, 2024.
The Notice of Motion dated 13th August, 2024.
8. The application is expressed to be brought under Sections 3A, 3B and 3C of the Civil Procedure Act, Cap 21 Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law and seeks the following orders:
a. [Spent].
b. [Spent].
c. THAT this Honourable Court to set aside and/or review the orders issued on 15th July, 2024 directing the Applicant to deposit a bank guarantee of Ksh.2,000,000/- in court within 30 days from the date (sic).
d. THAT this Honourable Court do order that the title deed of Kisumu/Korando/4574 which is in possession of the second Respondent be deemed as security and sufficient enough.
e. THAT the costs of this application be provided for.
9. The grounds upon which the Motion is premised are set out on its face and are as follows:
a. THAT unless orders sought in this maiden application then parties will litigating in vain (sic).
b. This Honourable court on the 15th July, 2024 issued an order directing the Applicant to deposit a bank guarantee of Ksh.2,000,000/- in court within 30 days from the date of issuance of the order failure to which interim orders will automatically lapse.
c. THAT the aforementioned interim orders of injunction will lapse automatically on 15th August, 2024.
d. THAT unless the aforementioned order is extended, the Applicant herein property (sic) being Kisimu/Korando/4574 risk (sic) being disposed of either through auction or private treaty.
e. THAT it is in the interest of justice that the orders sought herein be granted.
10. The application is supported by the affidavit of Alfred Ojiambo Juma sworn on 13th August, 2024.
11. The 2nd Respondent opposed the application by filing a replying affidavit sworn on 26th August, 2024 by Boniface Machuki, the 2nd Respondent’s legal officer.
12. On her part, the 1st Respondent filed grounds of opposition dated that served to oppose the two applications that the Applicant filed.
13. I will first address and determine the Motion dated 13th August, 2024 as the same was filed pursuant to the orders issued on the application dated 11th July, 2024 and seeks to review the same. The prayers that are outstanding in the application are 3 and 4, which in essence, when read together seek that I review the orders of 15th July, 2024 and set the condition of depositing Ksh.2,000,000/- bank guarantee aside and substitute the same with an order that the title deed for Kisumu/Korando/4574 is sufficient security.
14. Review of orders and decrees is provided for under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules Let us read the said provisions:
Section 80 of the Civil Procedure Act
80. Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
Order 45(1) of the Civil Procedure Rules.
45(1). Any person considering himself aggrieved—
(a). by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b). by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
15. From the provisions above, one can only seek review of an order or decree on the following grounds:
i. The discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or the order made.
ii. On account of some mistake or error apparent on the face of the record.
iii. For any other sufficient reason.
16. The Applicant has not moved the court on the basis that there is discovery of any new and important matter of evidence or that there is an error apparent on the face of the record. The first two grounds are therefore not available in considering the application. That then leaves me with the task of determining whether there is any other sufficient reason that would warrant this court to review the orders of 15th July, 2024.
17. It is to be noted that where the ground upon which review is sought is that of other sufficient reason, it is for the court entertaining the application for review to exercise its discretion. That then means that a party that is aggrieved by the outcome of the court’s decision must demonstrate that there exists such basis to warrant review.
18. The Applicant, with respect, did not provide any material as to what would amount to “other sufficient reason” for consideration by this court. I do not find it difficult, in the premises, to reach a conclusion that no such sufficient reasons exist and the application then fails. It then follows that what the Applicant seeks through the application is for me to sit on appeal of my sister’s orders, which would not abide the law as I sit in a court of concurrent jurisdiction. Various authorities have indicated the wide-reaching discretion which the courts have in determining sufficient cause. However, none stretches to include a scenario where the court would seem to be sitting on appeal over its own decision.
19. Now to the application dated 11th July, 2024, the Applicant states that it is necessary to seek for leave to appeal against the judgement of the lower court that was delivered on 30th May, 2024. He also seeks extension of time within which to appeal.
20. The Applicant states that he was not informed (by his Advocates) of the judgement or the outcome of his case until 3rd July, 2024 when he learnt that his case had been dismissed with costs, by which time the period within which to lodge an appeal had lapsed. He learnt that the judgement had been delivered in the absence of his Advocates.
21. Counsel for the Applicant Mr. Teddy Omondi Nyanjom stated in his affidavit in support of his client’s application that he had been taken ill at the time of delivery of the judgement before the trial court as a result of which he failed to inform his client of the outcome. As a result, the time within which to file the appeal expired.
22. For the foregoing reason, the Applicant moved the court whereby the first two prayers are that the Applicant be granted leave to appeal and for extension of time within which to lodge the appeal. I think that the order that the Applicant was seeking here is for leave to appeal out of time.
23. Under Section 79G of the Civil Procedure Rules, this court has discretion to extend time within which to file an appeal, which discretion must however be exercised judiciously.
24. Although the prayer for extension of time to lodge the appeal is resisted by the 2nd Respondent, I have considered the reasons given by the Applicant and his counsel – that the former was not aware of the date when the trial court delivered the judgement and that the latter, due to sickness, inadvertently failed to inform his client of the same.
25. In the case of Kamlesh Mansukhlal Damji Pattni v Director of Public Prosecution & 3 Others [2015] eKLR, the Court of Appeal observed as follows:
“It must be realized that courts exist for the purpose of dispensing justice. Judicial officers derive their judicial power from the people, or as we would want to say in Kenya, from Wanjiku, by dint of Article 159(1) of the Constitution which succinctly states that “judicial authority is derived from the people and vests in, and shall be exercised by the courts and tribunals established by or under this Constitution.” Judicial officers are also state officers, and consequently, are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity, are upheld.
For these reasons, decisions of the courts must be redolent of fairness and reflect the best interests of the people whom the law is intended to serve. Such decisions may involve only parties inter se (and hence only parties’ interests) and while others may transcend the interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.”
26. The Court went on to state as follows:
“It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint. So far the applicant did not have a chance to file a defence. He sought to set aside that default judgment and that application was dismissed on a date he contents the same was not due for hearing and when he had no notice…..”.
27. Access to justice is a guaranteed right under Article 48 of the Constitution while under Article 50 of the Constitution, it is provided that every person has the right to have any dispute that can be resolved by the application of law decided in a fair manner.
28. I am then of the persuasion that courts should be reluctant in completely shutting out parties who seek to have disputes resolved as what the law envisages at the end of the day is that justice is done.
29. Needless to state, it has been held on many an occasion that the mistake of Counsel should not be visited upon an innocent client. Both the Applicant and his Counsel have explained on oath that the delay was occasioned by lack of information from the Advocate to his client, which was occasioned by the Advocate’s indisposition. The Applicant should not be punished for the unfortunate situation. Considering the amount of time that lapsed before the Applicant moved the court for extension, I think that it does not amount to inordinate delay. I will therefore exercise my discretion in granting an extension.
30. The application in prayer 5 seeks stay of execution of the decree pending the hearing and determination of the intended appeal. In that regard, noteworthy is the fact that the Applicant’s suit was dismissed with costs by the trial court. The order for stay is in the premises not tenable as a court cannot stay a negative order, i.e. the court cannot stay the dismissal of a suit.
31. The last substantive prayer that the Applicant seeks in the application dated 11th July, 2024 is for a temporary injunction pending appeal. The principles for grant of temporary injunction pending appeal are now well settled. In the case of Patricia Njeri & 3 Others vs. National Museum of Kenya [2004] eKLR, the court stated as follows;
“(a) an order of injunction pending appeal is a discretionary which will be exercised against an applicant whose appeal is frivolous.
(b) the discretion should be refused where it would inflict greater hardship that it would avoid.
(c) the applicant must show that to refuse the injunction would render the appeal nugatory.
(d) the court should also be guided by the principles in Giella vs. Cassman Brown [1973] EA 358.”
32. In this case, the Appellant submitted that if an injunction is not granted at this stage, his intended appeal will be rendered nugatory as the property in question will already have been sold. My view is that the intended appeal, as discernible from the draft Memorandum of Appeal, is not frivolous.
33. The Applicant was on 16th July, 2024 granted some temporary relief that would have permitted him to pursue the prayer for injunction pending appeal but failed to comply with the order for providing security and instead pursued the application for review, which as I have already said, had no merit.
34. Shariff J observed on 18th September, 2024 that the Applicant, subsequent to obtaining the interim relief, embarked on “playing games”, having failed to comply with the orders as to security. My understanding of the sentiments of my sister is that the Applicant was through the application dated 11th July, 2024 abusing the process of this court, particularly vide the interim relief that the Applicant had secured.
35. Needless to state, this court has a duty to zealously guard against abuse of its process. This court cannot therefore countenance a situation where a party that has abused its process secures orders that would compound such abuse. I will in the premises decline to grant the prayer for injunction pending appeal.
36. The upshot is then that the only prayers I will grant in respect of applications dated 11th July, 2024 and 13th August, 2024 are as follows:
a. That the Applicant is granted leave to file an appeal out of time against the judgment delivered on 30th May, 2024 in Kisumu PMCC No. 265 of 2018.
b. That the Memorandum of Appeal to be filed and served within seven (7) days.
c. That in default of (b) above, the application dated 11th July, 2024 will be deemed to have been dismissed in its entirety on the date of this ruling.
d. All the other prayers in the two applications dated 11th July, 2024 and 13th August, 2024 are declined.
e. Costs of the applications dated 11th July, 2024 and 13th August, 2024 shall be borne by the Appellant, in any event.
Delivered (virtually), Dated and Signed this 11th day of March, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPLICANT: Mr. Omondi.
FOR THE 1ST RESPONDENT: No appearance.
FOR THE 2ND RESPONDENT: Ms. Kagia.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.