RULING
1. Before me is the Application dated 15/02/2024 brought under certificate of urgency under sections 3A & 63 (e) of the Civil Procedure Act, Order 10 Rule 11 & Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following orders;
a) THAT this honorable Court be pleased to grant the Applicant leave to appeal against the decision of the Chief Magistrate’s Court at Makueni (Hon. Martin Mutua) delivered in Civil Suit E145 of 2022 dated 30/11/2023.
b) THAT in the alternative, this honorable Court be pleased to deem the Applicant’s attached Memorandum of Appeal against the said judgment of the trial Court as having been duly and/or properly filed within time.
c) THAT this honorable Court be pleased to order the appeal to be placed before the Honorable Judge for directions as to its admissions and final disposal.
d) THAT costs of this Application be provided for.
2. The Application is supported by the grounds on its face and the Affidavit of the Applicant’s Affidavit sworn on the same day.
3. The gist of the Application is that the failure to file an appeal within the prescribed timelines was occasioned by delay of the trial Court in supplying the proceedings and copy of the judgment. A copy of the judgment and Memorandum of Appeal were exhibited as SM-1 & 2 respectively.
4. The Application was opposed vide the Respondent’s Replying Affidavit sworn on 03/04/2024 and a supplementary affidavit sworn on 30/05/2024. It is deponed that the Application is incompetent, fatally defective, bad in law and an abuse of the Court process; that the grounds set out in the Application and the facts in the supporting affidavit do not warrant the grant of the orders sought; that the Applicant was represented by his Advocate on record and it is assumed that he had legal advice all along.
5. It is deponed that the Applicant filed an Application to review the judgment in the trial Court and it was dismissed for being unmerited on 07/05/2024. The Application, response and ruling are exhibited as RNM 1, 2 & 1 respectively; that an appeal can only be admitted out of time if an Applicant satisfies the Court that he had a good and sufficient reason for not filing the appeal on time.
6. It is deponed further that the typed judgment was ready during delivery on 30/11/2023 and the Applicant had an opportunity to appeal within the stipulated period; that the Applicant chose to review the judgment and therefore cannot take a second bite at the cherry by appealing; that the Applicant is obstructing justice to ensure that she never gets the judgment delivered in her favor.
7. The Application was canvassed through written submissions.
8. The Applicant submitted that through the Memorandum of Appeal, he has demonstrated that he has a triable appeal. That the backbone of the intended appeal is that the trial magistrate ignored his (Applicant’s) case entirely and based the judgment on the Respondent’s case. That the appeal has triable issues with high chances of success which the Court ought to determine. He relied on UAP Insurance -vs- Lameck Bororio Mwene [2019] eKLR which cited with approval the case of Kenya Trade Combine Ltd -vs- Shah CA 193/99 on the proposition that triable issues raised does not mean a defence that must succeed.
9. He submitted that, on a balance of probability, he stands to suffer great prejudice in the event that the Respondent is allowed to execute the judgment as it is. That the judgment sum is overly exaggerated and this Court has been invited to exercise its supervisory role. He submitted that he is seeking a fair hearing as stipulated in Article 50(1) of the Constitution of Kenya.
10. He submitted that an appeal has a wider berth than a review as it does more than curing an error apparent on the face of the record. That the intended appeal herein is seeking to cure an error arising from the interpretation, by the honorable magistrate, of the materials brought before him as evidence. He contended that the intended appeal is well placed and should be allowed.
11. The Respondent submitted that the Applicant can only appeal against the orders issued in the Application for review on 07/05/2024 and relied on the case of HA -vs- LB [2022] eKLR where the Court stated;
A perusal of the record of these proceedings reveals that on 27th May, 2021, the learned trial magistrate made some maintenance orders against the Appellant herein. Subsequently, by a Motion on Notice dated 3rd June, 2021, the Appellant sought to have the said orders reviewed and set aside. By her ruling delivered on 4th November, 2011, the learned trial magistrate disallowed the said Application for review.
13. In this case the Appellant having sought to review the order made on 27th May, 2021 cannot now purport to appeal against the same. He can only appeal against the decision made on 4th November, 2021.”
12. It is submitted that the order dated 07/05/2024 is a negative order as it was dismissing the Application for review dated 24/01/2024. She relied on Kaushik Panchamatia & 3 Others -vs- Prime Bank Ltd & Anor (2020) eKLR where the Court of Appeal stated;
“a negative order is incapable of being stayed because there is nothing to be stayed. It therefore follows that in light of the above threshold, we have no mandate to grant stay order in the manner prayed for by the Applicants.”
13. The Respondent also relied on Western College Arts & Applied Sciences -vs Oranga & Others (1976) KLR 63 where the Court stated;
“But what is there to be executed under the judgment, the subject of the intended appeal the high Court has merely dismissed the suit with costs. An execution can only be in respect of costs…. The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this Court in an Application for stay to enforce or restrain by injunction.”
14. It is submitted further that the Applicant has not advanced any reasonable and satisfactory grounds to persuade this Court that the appeal was not filed on time due to delay in obtaining typed judgment and proceedings. That the Applicant did not prove any attempt to request for typed proceedings.
15. I have carefully considered the application, the supporting affidavit, the replying affidavit and the rival submissions, the only issue for determination is whether the Application is merited;
Analysis and Determination
16. The Respondent submitted that this Application should not see the light of day because the Applicant had sought review in the trial Court but it was rejected.
17. In HA -vs- LB (supra) the Court analysed several decisions from the Court of Appeal and drew the following conclusion, which I associate myself with;
An aggrieved party may not find the avenue of an appeal feasible and may apply for review without locking out those parties who may wish to pursue an appeal from doing so. But to apply for review with the intention of opening up fresh fronts for litigation on appeal against the order emanating from review and an appeal against the order sought to be reviewed amounts, in my view, to an abuse of the process of the Court. It would also contravene the overriding objective as provided under sections 1A and 1B of the Civil Procedure Act whose aim is the disposal of cases expeditiously and avoidance of multiplicity of proceedings. To find otherwise would amount to giving the Court’s seal of approval to persons who wish to play lottery with judicial process
18. In so doing the court drew from the Court of Appeal in, The Chairman Board of Governors Highway Secondary School -vs- William Mmosi Moi; Civil Application No. 277 of 2005, stated as follows:
“The Board took an active part in giving instructions to the Advocate on the various matters the Advocate was pursuing before the superior Court. In particular the Board gave instructions that an Application be filed for review of the ruling and it is the same ruling against which instructions had already been given for filing an appeal to the Court of Appeal. In those circumstances the options available to the Board were exhausted when the Application for review was determined by the superior Court and it is doubtful whether the intended appeal would be valid even if it was filed. An aggrieved party under Order 44 of the Civil Procedure Rules can apply for the review of a decree or order either where “no appeal has been preferred” or where “no appeal is allowed”. An appeal is allowed on orders made under Order 9A rule 2 Civil procedure Rules, as in this case, and indeed the Board filed a notice of appeal under rule 74 of the rules to challenge the orders. A notice of appeal however is only a formal notification of an intention to appeal and it cannot be said that the aggrieved party has “preferred” an appeal at that stage and was thus precluded from exercising the option of review. The issue as to whether a Respondent having filed a notice of appeal, which had not been withdrawn, was answered in the affirmative by the Court of Appeal in Yani Haryanto Vs. E. D. & F. Man (Sugar) Ltd Civil Appeal No. 122 Of 1992 (UR)... The Board was at liberty to pursue the option of review of the orders despite the filing of a notice of appeal to challenge the same orders. However upon the exercise of that option and pursuit therefrom until its conclusion, there would be no further jurisdiction exercisable by an appellate Court over the same orders of the Court. That was the end of the matter and the notice of appeal was rendered purposeless. Both options cannot be pursued concurrently or one after the other”.
19. The Applicant herein applied for review of the trial Court judgment but it was dismissed on 07/05/2024. The Applicant can only appeal against the outcome of the review and not the against the judgment that was the subject of the appeal.
20. In Gerald Kithu Muchanje -vs- Catherine Muthoni Ngare & another [2020] eKLR, the Court of Appeal reiterated its position as follows;
“Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review Application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant Application, the Applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original Judgment. The Applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the Respondents. Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error. An appeal could only lie on the outcome of the Application for review. In the case of Martha Wambui v Irene Wanjiru Mwangi & Another (2015) eKLR, the Court stated that “From the above provisions of section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure rules, it is clear that one cannot exercise the right of appeal and at the same time apply for review of the same Judgment/decree or order. One must elect either to file an appeal or to apply for a review… It therefore follows that the appellant herein had an unimpeded right to either appeal against the ruling of 13/6/2014 or apply to have it reviewed. And having exercised the right to a review, she lost the right of appeal against the same order …”
21. It follows therefor that the application herein is untenable and without merit. It is dismissed with costs to the respondents.
Mumbua T Matheka
Dated, signed and delivered via CTS on 18th October 2024
Judge
CA Nelima/Elizabeth
Applicant’s Advocates
Wesonga Wamalwa & Kariuki Associates Advocates
Wesonga.wamalwa@gmail.com
Respondent’s Advocates
B.M Mung’ata & Co. Advocates
bmmungata@yahoo.com