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JudgmentBENARD BOSIRE OKIRO VS SAMWEL MANDERE MATONGA8 min read

BENARD BOSIRE OKIRO VS SAMWEL MANDERE MATONGA

High Court at Nyamira High Court · · Wilfrida A. Okwany

(An Application to Strike out the Memorandum of Appeal vide Civil Appeal No. E008 of 2024 dated 2nd April 2024 and filed against the Judgment and Decree of Hon. B. Okong’o, Resident Magistrate delivered on the 30th day of November 2023 in Nyamira CMCC No. 160 of 2023)

BETWEEN

BENARD BOSIRE OKIRO ………….…………………………. APPELLANT

-VERSUS-

JOSEPHINE KWAMBOKA MANDERE & AMISI ONYUNGE MANDERE (Suing as the Personal Representatives and Legal Administrators of the Estate of SAMUEL MANDERE MATONGA (DECEASED)

..………………………………………………………………. RESPONDENTS

RULING

  1. This ruling is in respect to two related applications, namely; the application dated 6th April 2024  (hereinafter “the First Application”) filed by Respondents herein seeking to strike out of the Memorandum of Appeal dated 2nd April 2024 and further, the dismissal of the said Appeal; and the Appellant’s application dated 20th May 2024 (hereinafter “the Second Application”) wherein the Appellant seeks, inter alia, orders to extend time within which to file a Memorandum of Appeal.
  2. The first application is supported by the Affidavit of the Respondents’ counsel Mr. Wilkins Ochoki, who avers that upon entry of the impugned judgment before the lower court on 4th March 2024, the Appellant was granted 14 days to file an appeal, but did not do so and only filed the appeal on 2nd April 2024 without the leave of the Court. Counsel averred that the said Memorandum of Appeal was lodged outside the stipulated and the extended timelines and that the appeal was therefore misconceived and ought to be struck out.
  3. The Appellant opposed the first application through Replying Affidavit of his counsel Ms. Everline Moraa Okwoyo who avers that trial court’s order granting the Appellant 14 days to file the appeal was inadvertently recorded 30 days which error she only noticed when the first application was served upon her law firm. She averred that the mistake was not deliberate and should not be visited on her client, the Appellant, who was desirous of pursuing his appeal and had complied with the conditions for stay issued by the Lower Court.
  4. The second application, by the Appellant, is premised on the same grounds advanced in the Replying Affidavit to the first application. The Respondents opposed the 2nd Application through the 1st Respondent’s Replying Affidavit wherein she avers that the said application is incurably defective and ought to be struck out because the Applicant was granted time to file the appeal out of time and failed to comply with the directions of the Court. The 1st Respondent further avers that the Application is riddled with deliberate falsehoods meant to hoodwink the Court and to frustrate her from enjoying the fruits of her judgment. The 1st Respondent contends that the reasons presented for failing to comply with the stipulated timelines were not sufficient and that the application contravenes the provisions of Article 159 (2) (6) of the Constitution which guards against delayed justice.
  5. The Applications were canvassed together by way of written submissions which I have considered. I find that the main issues for determination is whether the Memorandum of Appeal dated 2nd April 2024 should be struck out and whether the Court should enlarge the time and allow the Appeal as already filed.

Analysis and Determination

  1. Section 79G of the Civil Procedure Act provides that: -

Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.

  1. In this case, it was not contested that judgment was entered by the trial court on 30th November 2023 and that the Appellant (Applicant in the 2nd Application) moved the Court on 18th January 2024 seeking orders of stay of execution and leave to appeal out of time. This Court issued directions on 4th March granting him leave to file his appeal within 14 days and to deposit the entire decretal sum in court within 30 days. The Appellant subsequently filed the Appeal on 5th April 2024.
  2. The reason advanced by the Appellant for this delay in filing the Appeal within the extended timelines was that his counsel inadvertently recorded the timelines granted by the Court as 30 days. The Appellant also stated that he had fully complied with the order to deposit the decretal sum in court as a condition for stay.
  3. It is trite that an Application for an extension of time falls under the unfettered discretion of the court. Such discretion must however be exercised judiciously and not capriciously.  In Edith Gichungu Koine vs. Stephen Njagi Thoithi [2014] eKLR the court of Appeal outlined the factors to be considered in applications for extension of time thus:-

“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”

  1. I note that the Applicant in the 2nd Application to enlarge time to appeal had fully complied with the condition for stay of execution orders and has therefore demonstrated good faith and an honest desire to pursue his appeal. I have also taken into account the fact that the delay in question was occasioned by the mistake of his legal Counsel. This Court is reminded of the adage that mistake of counsel must not be visited upon a litigant. In Hamam Singh & Others vs. Mistri [1971] EA 122 the court held that:-

“….in relation to applications to this court for leave to appeal out of time, it has been held that mistakes of a legal advisor may amount to sufficient cause but not inordinate delay on his part...”

  1. I have also considered the crux of the first Application which seeks to strike out the Memorandum of Appeal for reasons that it was filed out of time. This Court is guided by the principles stated in the case of Blue Sky Epz limited vs. Natalia Polyakova & Another [2007] eKLR that:-

“The power to strike out pleadings is draconian, and the court will exercise it only in clear cases where, upon looking at the pleading concerned, there is no reasonable cause of action or defence disclosed.”

  1. I have considered the period of delay in filing the Appeal. This Court ordered that the appeal be filed within 14 days from 4th March 2024. This means that the Application ought to have been filed by 22nd March at the latest. However, from the Record, it is clear that the Memorandum of Appeal was filed on 5th April 2024 which was 10 days after the extended timelines. In my view, the reasons given for the delay are plausible and not inordinate.
  2. I am also cognizant of the duty of this Court to uphold the rule of law and principles of fairness in administering justice. Allowing the Application to strike out the Memorandum of Appeal and by extension striking out the Appeal would be tantamount to driving the Respondent (Appellant) away from the seat of justice without affording him an opportunity to canvass his appeal. It is my view that such a determination would be against the interests of justice particularly where the decretal sum was already deposited in a joint interest-earning account. I find that the circumstances of these two Applications present a case where the Respondent would suffer more prejudice because his right to appeal would have been taken away while the Applicant would be enjoying the fruits if her judgment which would by then have accrued interest.
  3. The Court is of the view that it must place both parties on equal footing in the scales of justice. I am guided by the decision in Kamlesh Mansukhalal Damki Patni vs. Director of Public Prosecution & 3 Others [2015] eKLR where the Court of Appeal held thus: -

“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 are wont 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....

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…..”

  1. In conclusion, I find the Application dated 6th April 2024 lacks merit and I therefore dismiss it. The 2nd Application dated 20th March 2024 finds merit and is hereby allowed.
  2. In the upshot, I make the following final orders:-
  3. That the Applicant in the 2nd Application is granted leave to file an appeal out of time against the judgment in Nyamira CMCC No. 160 of 2022 delivered on 30th November 2023;
  4. That the Appeal dated 2nd April 2024 and filed 10 days after the extended period on 5th April be deemed as duly filed and properly before the Court.
  5. That the Application dated 6th April 2024 for striking out the Memorandum of Appeal dated 2nd April 2024 for reasons of being filed out of time be hereby spent.
  6. The Applicant in the 2nd Application (Appellant) shall pay thrown away costs of Kshs. 10,000 to the Respondent before fixing the appeal for admission.
  7. That the Applicant in the 2nd Application shall expeditiously prosecute his appeal in Nyamira HCCA E009 of 2024.
  8. I make no order on the costs of the Applications.
  9. Orders accordingly.

DATED


    BENARD BOSIRE OKIRO VS SAMWEL MANDERE MATONGA BENARD BOSIRE OKIRO VS SAMWEL MANDERE MATONGA