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JudgmentGladys Micere Wamiori VS James Kalungu Mumbo7 min read

Gladys Micere Wamiori VS James Kalungu Mumbo

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CIVIL APPEAL NO. E003 OF 2024

GLADYS MICERE WAMIORI……………………….....................APPELLANT/APPLICANT

VERSUS

JAMES KALUNGU MUMBO  ……………...…..……...…….………………..…RESPONDENT

RULING

  1. By an Application dated 31.1.24, the Appellant/Applicant seeks stay of execution, pending appeal, of the ruling and order of Hon. J. M. Kituku in Kilifi Succession Cause No. E136 of 2021in the matter of the estate of Brayson Ngala Mumbo, as consolidated with Kilifi Succession Cause No. E160 of 2021: in the matter of the estate of Chigongo Mbimbo Ngala. The Appellant/Applicant further seeks an order of status quo to be maintained as regards the order of 12.4.23 that the original titles in respect of the estate of the deceased be deposited in court and that there be no further in respect of the property pending confirmation of the grant. 
  2. The Application is supported by the grounds on its face, the Appellant/Applicant’s supporting affidavit sworn on even date. 
  3. The Appellant/Applicant is aggrieved by the judgement of the trial court of 20.12.23 and has already filed an appeal against the said decision.
  4. It is the Appellant/Applicant’s case that the Respondent and other registered owners of Kilifi/Mtwapa/3712 (the suit property) executed an agreement for sale for the sale to the in favour of the Appellant/Applicant for the sale of 1 acre to be excised from the suit property; that she paid the entire purchase price of Kshs. 3,035,000/=; that at the time of executing the said agreement Chigongo Mbimbo Ngala and Bravian Mumbo Ngala were deceased; that subdivision of the suit property was done through Mulwa Nduya & Company Advocates representing both parties; that the resulting numbers of the subdivision were Kilifi/Mtwapa/7688, Kilifi/Mtwapa/7689 and Kilifi/Mtwapa/7690 3712.
  5. The Appellant/Applicant went on to state that as she awaited transfer of Kilifi/Mtwapa/7689 to herself, she discovered that the Respondent and other registered owners had without her knowledge had filed an application for confirmation of grant in the succession causes which included the portion she was buying; that she proceeded to file a limited objection challenging the said confirmation; that the learned Magistrate; that her objection was on 20.11.23 dismissed while the confirmation was upheld. The learned Magistrate directed that the purchase price paid be refunded to her despite the suit property being jointly owned and not subject to succession proceedings.
  6. The Appellant/Applicant contends that if the stay sought is not granted, the grant will be confirmed excluding her, thereby illegally dispossessing her of her land. She urged that the Respondent will not suffer any prejudice should the orders be granted.
  7. The Respondent opposed the application through his replying affidavit sworn on 19.2.24 in which he denied the allegations by the Appellant/Applicant. He contended that the Applicant has not met the threshold set out in Order 42 Rule 1 of the Civil Procedure Rules, to warrant the grant of the orders sought. He contended that there was delay in filing the Application and the appeal given that 30 days had already lapsed and no leave was sought, thereby rendering the Application and appeal defective. Further that the Appellant/Applicant has not demonstrated the substantial loss to be suffered nor has she deposited any security as required.
  8. The Respondent further averred that the appeal has no reasonable chances of success as the trial court made a final determination on the issues based on the evidence and dismissed the Appellant/Applicant’s limited objection with costs. Further that the subdivision was illegally undertaken by the advocate without his family’s involvement and consent, and contrary to the provisions of the agreement for sale. The Respondent denied that there was an order for refund of the purchase price and added that the Appellant/Applicant, not being a beneficiary could not be included in the application for confirmation of grant. Further that the present application is premature as the transfer was to be done once the grant was confirmed but that parties are yet to decide which beneficiary gets what portion of the suit property.
  9. The Respondent concluded that he and his family stand to be prejudiced should the orders sought be granted as the property is likely to be wasted given that the appeal lacks merit. Further that the prayer for deposit of title deeds in respect of the suit property is unreasonable as the Applicant’s claim relates only to Kilifi/Mtwapa/7689. He urged the Court to dismiss the Application.    
  10. As I consider this matter, I shall begin with the preliminary issue raised by the Respondent that the appeal herein was filed out of time and that no leave was sought by the Appellant/Applicant.
  11. The statutory period for filing an appeal in this Court from a subordinate court is 30 days. This is stipulated in Section 79G of the Civil Procedure Act which provides:

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 good and sufficient cause for not filing the appeal in time.

  1. The circumstances herein are that the decision of the lower court was made on 20.12.23. The memorandum of appeal was filed on 22.1.24, which is 2 days after the expiry of the statutory period. The Appellant/Applicant argued that having been granted a 30 day interim stay by the lower court, the period of 30 days following the ruling were not to be counted. Further that the Application was filed only 7 days after lapse of the interim order of stay of execution.
  2. In the order dated 20.12.23 exhibited by the Respondent, the lower court granted a stay of execution of 30 days from that date. The purpose of an order for stay of execution is to preserve the substratum of the case pending an appeal or any other action. Such an order does not, nor is it intended to, in any way not freeze the timelines set in Section 79G of the Civil Procedure Act, to file an appeal.  The said provisions are couched in mandatory terms and must be adhered to.
  3. The importance of time lines was discussed in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR, here Kiage, JA stated:

This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.

  1. The proviso to Section 79G of the Act allows a party who gets caught up and is unable to file an appeal within the stipulated period, to seek extension of time. Such party must however satisfy the Court that there is good and sufficient reason for not filing the appeal on time. Any appeal filed out of time without leave is a nullity and cannot be entertained by a court. Nor can a court breathe life into such an appeal by granting leave post filing.
  2. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court expressed itself thus regarding an appeal filed out of time without leave:

However, it cannot be gainsaid that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of that time before he can proceed to do that which the law requires.

By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.

  1. Duly guided by the cited authorities, I find that the appeal is a nullity having been filed out of time without leave. It follows that the present Application which is anchored on the said appeal is also a nullity. a nullity. In this regard I find it apt to cite the words of Lord Denning in Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, where he delivered the following opinion of the Privy Council at page 1172 (1):

If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is You cannot put something on nothing and expect it to stay there. It will collapse.

  1. In the end and in view of the foregoing, both the appeal and the application are hereby struck out with costs to the Respondent.

DATED, SIGNED and DELIVERED in MALINDI this 15th day of November 2024

_______________________________

M. THANDE 

JUDGE

    Gladys Micere Wamiori VS James Kalungu Mumbo Gladys Micere Wamiori VS James Kalungu Mumbo