[2023] KEHC 25323 (KLR)

Bandari Savings and Credit Sacco Society Ltd v Mwinyi & another (Civil Appeal 7 of 2023) [2023] KEHC 25323 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25323 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 7 of 2023

DKN Magare, J

November 7, 2023

Between

Bandari Savings and Credit Sacco Society Ltd

Appellant

and

Mwidani Kombo Mwinyi

1st Respondent

Francis Mururu

2nd Respondent

Ruling

1. This is an appeal arose from the judgment and order of the Cooperative Tribunal, Honourable Mwatsama, P Gichuki and B Akusala given on 28/7/2022. The Appeal was filed on 23/1/2023. The time for filing appeals lapsed on 27/8/2022. This appeal was filed over fourth and half moths out of time without leave.

2. Pursuant to section 81 of the cooperative society act, the appeal should be filed within 30 days. The act provides as doth: -“81. Appeal to High Court(1)Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court: Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.(2)Upon the hearing of an appeal under this section, the High Court may—a.confirm, set aside or vary the order in question;b.remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the court may deem fit to give;c.Exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought;d.or make such other order as it may deem just, including an order as to costs of the appeal or of earlier proceedings in the matter before the Tribunal.(3)The decision of the High Court on any appeal shall be final.

3. The four grounds are: -a.The Learned Magistrate erred in finding violation of Section 20 of the of Consumer Protection Act, 2012, on the facts of the case.b.The Learned Magistrate erred in awarding compensation for that violation when such compensation was wholly unjustified and a departure from the pleaded case.c.The Learned Magistrate erred in awarding interest from the date of filing suit on awards of General damages.d.The Learned Magistrate erred in awarding exemplary damages without Legal basis for it. The appellant prayed that the Court allows the Appeal, set aside the entire Judgment and decree and dismiss the suit with costs.

4. The matter came before me and I directed that the same be heard by way of submissions.

5. After perusing the record, I noted that the Appeal was filed out of time without leave.

6. The court has no jurisdiction to hear a matter filed out of time without leave. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where Justice Nyarangi, JA, as he then was, posited succinctly as follows: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”

7. In the case of Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2019] eKLR, the court of Appeal referring to its own rules stated as doth: -“The appellant therefore was obliged to file the record of appeal strictly within sixty uninterrupted days of filing the Notice of appeal, this period lapsed on 25th April, 2017. Having failed to pursue a certificate of delay, it is too late for the respondent to visit blame on the registry for his own misapprehension of the Rules. The record of appeal was thus inexcusably filed out of time, without leave of Court and premised on a defective Notice of Appeal.”

8. Section 79 G of thecivil procedure Rules, provide as doth for time for filing appeals from subordinate courts provides as follows: -“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.”

9. Though this appeal is governed by the Cooperative Tribunals Act, the Court has inherent powers to extent time to appeal out of time when moved. In Paul Njage Njeru v Karija K Mugambi [2021] eKLR discretion to extend time must be exercised within the established principles of the law and the factors to be considered, the court stated as doth: -“when determining an application seeking leave to appeal out of time were discussed by the Court of Appeal inOmar Shurie vs Marian Rashe Yafar (Civil Application No. 107 of 2020) being: -a.the length of the delayb.the reason for the delayc.the chances of the appeal succeeding if the application is grantedd.the degree of prejudice to the respondent if the application is granted

10. Both parties filed submissions on the matter. Unfortunately, in this matter the court has not been moved. The Appeal is filed out of time. It cannot be salvaged.

11. The only order recommending itself is striking out of the appeal. I proceed to do so. The appeal is hereby struck out for being field out of time. The primary file be returned to the tribunal. The 1st respondent shall have costs of 45,000/= for the Appeal.

Determination 12. The court makes the following orders: -a.The Appeal was filed out of time and as such it is struck out in limine.b.Costs of Ksh 45,000/= to the 1st Respondentc.The tribunal file be remitted to the tribunal.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Ahmed for the AppellantNo appearance for RespondentCourt Assistant - Brian