[2017] KEHC 9488 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

CIVIL APPEAL NO. 96 OF 2016

A S Y…………………………………….………………APPELLANT

VERSUS

D J BM ……………….....……..……………………..RESPONDENT

(Being an appeal from the order of Honorable Mbati (Resident Magistrate) made on 15th August 2016 in Miscellaneous Children’s Case No. 92 of 2016)

A S Y. …………………………….…………………..…..APPLICANT

VERSUS

D J B M. ……………..………..……………………..RESPONDENT

JUDGMENT

1. The appellant A S Y is the widow of the deceased J P J B who died on 26th July 2015 at Watamu Township in Kilifi County. She is the mother of three children aged about 4, 6, and 12, respectively. The children are L N A, J J M and M J B. The last two children belonged to the marriage between her and the deceased. The deceased’s father D J B M is the respondent. Following a preliminary inquiry, the appellant and another were jointly charged in Criminal Case No. 15 of 2016 at the High Court in Malindi with the murder of the deceased. The matter is pending. She is out on bond.

2. The present appeal arises from an ongoing dispute between the appellant and the respondent over the guardianship of the two children. The dispute is before the Children Court at Milimani in Misc. Children Cause No. 92 of 2016. The appellant went to the court on 19th April 2016 with an exparte application and obtained a guardianship order over the children. The respondent was aggrieved by the order and went before the same court. On 11th May 2016 he sought the revocation of the order. On 19th May 2016 he obtained a stay order. The application for revocation was opposed. On 11th August 2016 the respondent applied to have the appellant cross-examined on her replying affidavit during the hearing of the revocation application. The application for leave was made exparte. The trial court allowed it on 15th August 2016. It went further and reinstated the appellant’s application dated 18th April 2016. This is the application in respect of which the court had allowed by granting the guardianship order.

3. This appeal sought to challenge the orders made on 15th August 2016 in favour of the respondent. It was filed on 5th October 2016. In the Memorandum of Appeal, the applicant complained that she had not been afforded a hearing on the application for leave to cross-examine; and that the court had erred in reinstating the application dated 18th April 2016 when there was no request for that.

4. Counsel for the parties filed written submissions on the appeal. The appellant was represented by M/S Asli and the respondent by Mr. Okello. The respondent raised two preliminary issues regarding the appeal:-

(a) that the appeal had been filed out of time, without leave; and

(b) that the court did not have jurisdiction to entertain the appeal because the appellant had a pending application before the trial court an application for the review and/or setting aside of the orders issued on 15th August 2016.

5. It has been indicated in the foregoing that the order subject of the appeal was issued on 15th August 12016. The appeal was filed on 5th October 2016. Section 79G of the Civil Procedure Act mandates an aggrieved party to lodge an appeal against an order or decree passed against him within thirty (30) days from the date of the order or decree, and any appeal filed outside that time without leave of court is incompetent (Martha Wambui –v- Irene Wanjiru Mwangi & Another [2015}eKLR). The appeal herein was certainly filed out of time, and there was no application for leave to file it out of time. Ms. Asli for the appellant did not address the court on this issue. It follows that Mr. Akello’s contention had no rebuttal.

6. There is no dispute that by the time the appeal was filed, there was pending in the subordinate court an application dated 6th September 2016 by the same appellant seeking to set aside, vacate or vary the orders issued on 15th August 2016. Mr. Akello’s contention, relying on the authority above, was that having exercised the right to review, she lost the right of appeal against the same order; that, one must elect either to file an appeal or to apply for review. Once again, Ms Asli did not respond to this issue. In Kisya Investment Ltd –v- A.G & Another, Civil Appeal No. 31 of 1995 the Court of Appeal held that a party who has filed a notice of appeal cannot apply for review but if the application for review is filed first, the party is not prevented from filing appeal subsequently even if a review is pending. The same position was restated by the same court in Kenya Tea Development Authority –v- Microfilm Equipment Ltd & Another, Civil Application No. 221 of 1999 (NBI).It follows that the appellant’s decision to ask for review in the trial court and come to this court on appeal over the same order, while the review application was pending, cannot be legally faulted.

7. However, the appeal remains incompetent having been filed out of time and without leave. The same is struck out, with no order as to costs.

8. I direct that, instead of dealing with peripheral applications, the trial court should, with due urgency, set down the matter for the hearing of the substantive issue of the who, between the appellant and the respondent, shall have custody and/or guardianship over the children in the matter.

DATED, DELIVERED and SIGNED at NAIROBI this 5TH OCTOBER 2017

A.O. MUCHELULE

JUDGE