[2022] KEHC 12734 (KLR)

David Mureithi Kanyi Kee Plants (K.P) Properties Limited v Njiru (Miscellaneous Civil Case 73 of 2021) [2022] KEHC 12734 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12734 (KLR)

Republic of Kenya

In the High Court at Malindi

Miscellaneous Civil Case 73 of 2021

SM Githinji, J

May 12, 2022

Between

David Mureithi Kanyi Kee Plants (K.P) Properties Limited

Appellant

and

Ann Wawira Njiru

Respondent

Ruling

1. Before me for determination is the respondent’s preliminary objection dated November 11, 2021 based on the following grounds;a.That this honourable court lacks jurisdiction to hear an appeal that is filed out of time and without leave of court.b.That the memorandum of appeal filed on November 2, 2021 is irregular since it was filed out of the mandatory timelines as set out in section 79G of the Civil Procedure Act.c.That there cannot be a stay of execution of the lower court’s decree pending the hearing of a non- existent appeal.d.The applications as filed are non-starters, bad in law, vexatious and an abuse of the court process.

2. The appellants in response filed a replying affidavit sworn by Jacqueline Waihenya on the November 19, 2021. She deponed that her firm applied for certified copies of the ruling and proceedings on September 31, 2021 and that the Kilifi Law Courts forwarded the ruling in the subordinate court via email on October 26, 2021. She also deponed that thereafter she filed and served the memorandum of appeal on the November 2, 2021 in accordance with the provisions of order 42 rule 2 of the Civil Procedure Rules. According to her, the appeal was not filed out of time as per the provisions of section 79G as read together with order 50 of the Civil Procedure Rules, 2010.

Respondent’s Submissions 3. The respondent through her advocate Mugendi Karigi & Co Advocates filed submissions on the December 2, 2021 pursuant to the directions of this honourable court on the November 16, 2021. In his submissions, he addressed two issues for determination; whether the preliminary objection raises points of law and whether the court has jurisdiction to hear the appeal filed out of time and without leave. On the first issue, he pointed the attention of the court to the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 and that of Hassan Ali Joho & another v Suleiman Said Shabal & 2 others SCK Petition No 10 of 2013 [2014] eKLR as to what constitute a preliminary objection.

4. It is his submission that their preliminary objection has met the threshold in the above cases because it raises the issue of jurisdiction of this honourable court to hear the appeal that is filed out of time and without leave of court, which is a pertinent legal issue and if the court is convinced in the affirmative, it can dispose of the appeal in its entirety.

5. On whether the court has jurisdiction to hear the appeal filed out of time and without leave of court he submitted that the ruling in Kilifi Civil Case No E117 of 2020, Ann Wawira Njiru v David Mureithi Kanyi & Kee Plants (KP) Properties Limited was delivered on September 30, 2021 and the subject application and memorandum of appeal were filed on 2nd and November 9, 2021 respectively and according to them, the appellants were statutory mandated as per section 79(g) of the Civil Procedure Act to have filed their appeal on/ or before the October 30, 2021 which fell on a saturday and therefore the next date when the filing ought to have been done was on October 1, 2021 which was the next official working day. He heavily relied on the authorities of Speaker of the National Assembly v James Njenga Karume [1992] eKLR and that of James Murage Nguyu v RNN (Minor suing through next friend RNK) & another [2021] eKLR where the court held that the appeal was not properly before court as it was filed out of time and no leave had been obtained by the appellant to file the appeal outside the statutory allowed time, and that the appeal was incompetent for failure by the applicant to file the record of appeal.

6. The appellant filed their submissions on the March 28, 2022. They submitted that the preliminary objection does not meet the principles of law as it does not raise a pure point of law. It was their submission that a preliminary objection should always be concise and specific and that using vague words such as bad in law, vexatious and an abuse of court process does not necessarily specify what is set out in order 2 rule 4 of the Civil Procedure Ruleswhich urges advocates to particularize any specific objections to the opponents’ pleadings.

7. They submitted that the instant objection as drawn by the respondent is argumentative, requires computation of time which inexplicably excludes the two public holidays that fall in the month of October and therefore requires evidence to be led. They relied on the case of National Bank of Kenya Limited v Peter Kipkoech Korat and another [2005] eKLR.

8. According to them, the objection as drawn by the respondent seeks to unjustifiably challenge the inherent and discretionary powers of this court as the time given to file the appeal had not lapsed. They submitted that the respondent stands to suffer no prejudice should the appeal proceed to substantive hearing and determination and therefore on a balance, the interests of ventilating the appeal on its merit far outweighs the technicalities approach propounded by the respondent herein.

9. The issue for determination is whether the appeal was filed out of time as set out in section 79G of the Civil Procedure Act.

10. The provisions of section 79G of the Civil Procedure Act cap 21 laws of Kenya state 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 anytime 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”.

11. I note from the record and the documents by the applicant that the ruling which is the subject of this appeal was forwarded via email on October 26, 2021 and thereafter the memorandum of appeal was filed and served on November 2, 2021. I find that the same was filed within the legal time frame, and I am equally in agreement with the appellant that the preliminary objection as brought forth by the respondent does not meet the legal threshold as it does not raise a pure point of law.

12. What constitutes a preliminary objection was set out in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696. Thus, a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the court has to be satisfied that there is no valid contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”To this end, I am inclined to dismiss the preliminary objection with costs to the appellants.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 12THDAY OF MAY, 2022. ...................................SM GITHINJIJUDGEIn the Presence of; -Mr Gitahi holding brief for Miss Waihenya Advocate for the appellants.Mr Njagi Advocate for the respondent.