[2017] KEHC 1013 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

FAMILY DIVISION

CIVIL APPEAL NUMBER 17 OF 2016

D K M M.......................................1ST APPELLANT

B M

H V...............................................2ND APPELLANT

VERSUS

PROF. M

K M...................................................RESPONDENT

RULING

PLEADINGS

By an application filed on 24th February 2016, the appellants sought leave to file appeal out of time and the leave to operate as a stay of the Ruling delivered by the Trial Court in Divorce Cause 489 of 2014 and/or pending the hearing and determination of Applicants application herein and appeal to be preferred there from.

The Applicants are exposed as the Respondent has already moved the trial Court to have the divorce proceedings be listed for directions as undefended cause and the Applicants were not served with the hearing date for directions.

The application is based on following grounds;

The Respondent filed petition for divorce in the above mentioned case on 27th October 2014. The Appellants entered appearance through their Counsel. Subsequently, the Appellants' raised Preliminary Objection on 8th December 2014 which was to be disposed off by written submissions. The Ruling was slated for 18th September, 2015 and the same was not delivered and was deferred to 27th November 2015. The same was not delivered and was to be delivered on notice.

On 19th February 2016, the 1st Appellant called her advocate who informed her that she learnt the Ruling was delivered in December, 2015 in South Africa. On enquiring from the Registry was confirmed that Ruling was delivered on 4th December, 2015 and the matter was scheduled for directions on 7th March 2016. The appellants immediately applied for certified typed proceedings and ruling of the Court. Therefore the circumstances that led to applying for leave to file appeal out of time were beyond the Applicants' control and understandable in the circumstances.

The application herein was also canvassed by filing of written submissions by all parties. By their submissions the Applicants relied on

PAUL WANJOHI MATHENGE vs DUNCAN GICHANE MATHENGE C.A NAI 50 OF 2010 (NYERI 4/2010) Odek JJA held;

It is now settled that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are; first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent if he application is granted.

See also GYKA FUEL MART LTD vs BWANA MSHIRI SUNGURA MISC CIVIL APPLICATION 40 OF 2013 (MSA HIGH COURT)

The Respondent filed Grounds of Opposition of 14th March 2016 filed on 23rd March 2016 on the following grounds;

The Applicant did not substantiate reasons for delay in filing of the appeal as required by the case of;

SAMUEL THUITA WANJAMA vs CELESTINE MWANIKI MUNA & ANOR (2009) eKLR where the Court held;

In an application for leave to file and serve notice and record of appeal out of time, the Court is being asked to exercise its unfettered discretion which is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but it’s not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. The decision whether or not to extend the time for appealing is essentiallydiscretionary......

See also AVIATION CARGO SUPPORT LTD vs ST. MARK FREIGHT SERVICES LTD CIVIL APPLICATION NAI HCT 98 OF 2013

The Ruling in CMCC DIVORCE CAUSE 489 OF 2014 was delivered on 4th December 2015 and Appellants claim that they knew of the Ruling in February 2016 and thereafter filed instant application seeking leave to file appeal out of time contrary to Section 79 G Civil Procedure Rules 2010out of the mandatory 30 days after the Ruling. Section 79 G allows appeal out of time if the Appellant satisfies the Court of good and sufficient reasons.

The Divorce Cause was filed in 2014 by the Respondent in Kenya while the Appellant filed the same matter in South Africa in 2011. Both suits have the same goal and therefore if leave to appeal out of time is not granted there would be no prejudice. The Appellants have failed to show that the intended appeal has chances of success.

DETERMINATION

This Court considered the Application for leave to file an appeal out of time and stay the orders of the Ruling in CMCC DIVORCE CAUSE 489 OF 2014. The appeal ought to have been filed within 30 days from 4th December 2015 when the Ruling was delivered. There was delay which the Respondent's Counsel explained in detail that after enquiring of the delivery of the Ruling on the Preliminary Objection twice they were informed that the same would be delivered on notice which they never received. The Respondent learnt later in February 2016 that the Ruling was delivered in December 2015. This Court finds that the explained circumstances are plausible to explain the inordinate delay in filing appeal.

To the other issues; is there chance of the appeal succeeding on appeal? This Court thinks not because the Ruling is with regard the Preliminary Objection that since the Appellants filed a Divorce Cause in South Africa the Respondent should not proceed with the instant case filed in Kenya as the parties reside in South Africa.

Honourable Justice W. Musyoka in HCCA No. 53 of 201, M N M v P N M stated as follows:

The jurisdiction of a family court to entertain a divorce cause is therefore guided by the law of domicile. Whether a court before which such matter has been placed is competent to handle it will depend on whether the parties or either of them have been resident within the jurisdiction of that court for the period stipulated by the relevant law.

The Appellants, Respondent and children of the marriage reside in South Africa. The 1st Appellant, Respondent and children are Kenyan Citizens and therefore domiciled in Kenya.

Each party can and has filed petition for divorce in their preferred jurisdiction. The Appellant filed the suit in South Africa whilst the Respondent in Kenya.

Therefore there is no legal provision to stop or halt divorce proceedings in both Kenya and South Africa. The issue is not that the suit filed in Kenya is incompetent or that the Kenyan Court lacks jurisdiction but rather a matter of convenience for both parties and incurring expense and waste of time.

Secondly, there is binding authority on the issue of filing similar cases in different jurisdictions; in the case of

JAMES OWENS vs MARGARET OWENS CIVIL APPEAL 48 of 1959 where the husband filed petition for divorce in Kenya and the wife filed petition for divorce in England; Court stated as follows;

There was no danger of inconsistent decrees being made since, if either Court decreed the dissolution of marriage, the proceedings in the other jurisdiction would be brought to an end, on the ground that the marriage had already been dissolved.

This Court has found no prejudice on either of the parties if there are proceedings in both Kenya and South Africa and once either is heard and determined the other will automatically abate.

Therefore from the above considerations the Notice of Motion of 24th February, 2016 for leave to file out of time is hereby dismissed with costs to the Respondent.

The matter is remitted to the Trial Court for hearing and determination.

It is hereby ordered.

DELIVERED SIGNED & DATED IN OPEN COURT IN NAIROBI ON 3RD NOVEMBER, 2017

M.W.MUIGAI

JUDGE