[2023] KECA 1524 (KLR)

EMP v FNM (Civil Appeal (Application) 55 of 2020) [2023] KECA 1524 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1524 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Appeal (Application) 55 of 2020

AK Murgor, KI Laibuta & GV Odunga, JJA

December 8, 2023

Between

EMP

Applicant

and

FNM

Respondent

(An application seeking to file an appeal out of time against the judgement and orders of the High Court of Kenya at Mombasa, (Thande, J.), delivered on 5th May 2020 in HCCC Divorce Cause No. 31 of 2015(O.S))

Ruling

1. This is a reference from a ruling of a single judge of July 7, 2023 to the full Court under rule 55(1) (b) of the Court of Appeal Rules filed on July 13, 2023, where the respondent, FNM, seeks to set aside the single judge’s (Lessit, JA) ruling in respect of the motion dated August 6, 2020 where the applicant, EMP , had sought for leave to file a memorandum and record of appeal out of time against the judgment and orders of the High Court at Mombasa of May 5, 2020.

2. As a brief background, the applicant filed a divorce petition against the respondent seeking, amongst other orders, a permanent injunction restraining the respondent, either by himself, his servants, agents or third parties or anyone under his authority, from selling, disposing, transferring, mortgaging, charging, registering the property, or otherwise interfering with the matrimonial properties which they had jointly acquired during the subsistence of their marriage, or doing anything detrimental to such properties or to the applicant, and further, for the marriage between the applicant and the respondent to be dissolved. Also sought was a declaration that the applicant had equal rights to the properties, and that, in the event that title or ownership of any of the suit properties was transferred to any third party, the respondent do account for them and divide the proceeds between the parties.

3. The applicant contended that she was a divorcee who had cohabited with the respondent, then a bachelor, since 1997 at Serena, Shanzu in Mombasa, and that they were blessed with a child. The respondent also acquired parental responsibility over her son from a previous relationship. In the petition, she also sought dissolution of the marriage on grounds of cruelty and adultery.

4. The respondent denied solemnizing a marriage with the applicant under Taita customary law and asserted that, on this basis, the issue of divorce did not arise. He contended that the applicant, with whom he had a child, had been his girlfriend since 1997. He accused her of adultery with various men, including himself, whilst still married to yet another man. He denied that the applicant was entitled to the properties, and filed a cross petition where he sought to include other properties that the applicant had excluded from the petition. Also sought was an order for accounts, an injunction restraining the applicant from transferring the named properties, a declaration that any such transfer would be null and void, and an order compelling the applicant to sign in his favour the transfer forms of the excluded properties.

5. Upon considering the matter, the trial judge found that a presumed marriage had come into existence and ordered that it be dissolved. The court issued a declaration that the applicant was not entitled to the properties listed in the petition, and further determined that the respondent was not entitled to a share of the additional properties listed in the cross-petition.

6. The applicant was dissatisfied with the decision and lodged a Notice of Appeal dated May 28, 2020. Thereafter, in an application dated August 6, 2020, she sought for time to be extended to file the memorandum and record of appeal out of time. The grounds were that the judgment was scheduled for delivery on May 5, 2020 on a virtual platform but that, due to technical hitches, her advocate on record was unable to log onto the platform; that the judgement was delivered in their absence; and that the court registry had not transmitted the judgment to them until May 25, 2020.

7. It was further contended that, on May 27, 2020, the applicant instructed her advocates to file an appeal and, on May 28, 2020, a notice of appeal was filed; that the applicant’s advocates were supplied with hand written notes on June 11, 2020 instead of the typed proceedings, and that her advocates took it upon themselves to type the hand written notes, which were subsequently forwarded to the court for proof reading and certification; that the record of appeal was thereafter filed on July 3, 2020.

8. By a replying affidavit sworn on December 19, 2020, the respondent opposed the motion and averred that the applicant’s advocates logged on and off the virtual platform on the day the judgment was delivered; that there was no evidence that the advocates applied for the proceedings, and that the application to extend time was only filed after the respondent lodged an application to strike out the Notice of Appeal in Miscellaneous Civil Application No 49 of 2020, which is still pending; that his advocates have not been served with a request for the proceedings to date; and that no typed proceedings have been filed. It was finally asserted that the applicant did not have an arguable appeal.

9. By a ruling of July 7, 2023, the learned single judge allowed the application and granted the applicant leave to file a memorandum and record of appeal out of time. It is this ruling that is the subject of the respondent’s reference before us.

10. During the hearing of the reference, Ms Osino, learned counsel for the respondent, relied on written submissions, which she highlighted and urged that the learned single judge failed to properly compute the period of delay in the filing of the appeal; that the notice of appeal was filed on May 28, 2020 and served on the respondent via email on June 8, 2020, and physically on June 16, 2020; that the filing and service of the notice of appeal were out of the prescribed time, and no leave was sought to have time extended to file in time. Counsel further stated that the memorandum and record of appeal were lodged in time on July 3, 2020, which rendered the application to extend time for filing the appeal superfluous, and that the learned single judge ought to have struck it out; and that this notwithstanding, in the ruling of July 7, 2023, the learned single judge extended time for filing the appeal without appreciating that it was premised on an incompetent notice of appeal.

11. Counsel further submitted that the notice of appeal was struck out by this Court (Gatembu, Nyamweya & Lesiit, JJ A) in Civil Application No 49 of 2020 on March 17, 2023; that, since no Notice of Appeal existed on the record, time was not capable of being extended for filing of the memorandum and record of appeal.

12. On his part, learned counsel for the applicant, Mr Musyoki, admitted that no valid notice of appeal existed on the record by virtue of the ruling of this Court of March 17, 2023.

13. Having considered the reference and the submissions of the parties, the question that arises is whether this court should interfere with the exercise of discretion by the learned single judge to extend time to file the memorandum and record of appeal.

14. The motion that was before the learned single judge was brought under rule 4 of this Court’s Rules where it is settled that the single judge has unfettered discretion on whether to extend time or not. In so doing, the discretion should be exercised judiciously and not frivolously, having regard to the guiding principles, including the length of the delay, the reason for the delay, the chances of success of the appeal, and whether or not the respondent will suffer prejudice if extension of time was granted. See the case of Leo Sila Mutiso v Rose HellenWangari Mwangi – Civil Application No Nai 251 of 1997.

15. In a reference such as this, a full bench of this Court will only interfere with the exercise of discretion if it becomes apparent that the single judge took into account an irrelevant matter which ought not to have been taken into account, or failed to take into account a relevant matter which ought to have been taken into account, or misapprehended the law applicable or the evidence before them, or reached a decision that was plainly wrong. See Simeon Okingo & 4 others v Benta Juma Nyakako [2021] eKLR; Hezekiah Michoki v Elizaphan Onyancha Ombongi [2015] eKLR and John Koyi Waluke v Moses Masika Wetangula and 2 others[2010] eKLR.

16. A consideration of the chronology of events pertaining to the filing of the appeal shows that, on March 17, 2023, a full bench of this Court struck out the applicant’s notice of appeal. Then on July 7, 2023, the single judge rendered a decision extending time for filing of the memorandum and record of appeal. It is apparent that when arriving at that decision, though a member of the bench of this Court that struck out the applicant’s notice of appeal, the learned single judge clearly overlooked the fact that the applicant’s notice of appeal had since been struck out.

17. In the case of Nicholas Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court declared the question of filing of a notice of appeal to be a jurisdictional pre-requisite in the filing of appeals. And in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR, that court further emphasized that, without a notice of appeal, there cannot be an express intention to appeal.

18. Given the jurisdictional importance of the notice of appeal, the applicant’s notice having been struck out rendered the motion to extend time to file the memorandum and record of appeal an exercise in futility, since there was no foundation upon which the appeal would be premised. In effect, no competent appeal could be brought before the Court. See the case of Bookpoint Limited v Guardian Bank Limited & another [2021] eKLR.

19. In sum, the learned single judge having failed to take into account that there was no basis upon which to file an appeal in view of the applicant’s notice of appeal having been struck out, it is necessary for us to interfere with that exercise of discretion, and allow the reference, set aside the ruling of the single judge of July 7, 2023 and substitute therefore an order dismissing the applicant’s motion dated August 6, 2023 with costs to the respondent.It is so ordered.

DATED AND DELIVERED AT MALINDI THIS 8TH DAY OF DECEMBER, 2023A. K. MURGOR…………………………JUDGE OF APPEALDR. K. I. LAIBUTA…………………………JUDGE OF APPEALG. V. ODUNGA…………………………JUDGE OF APPEALI certify that this is a True copy of the originalDEPUTY REGISTRAR