[2017] KEHC 2612 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CIVIL APPEAL NO. 4 OF 2016

FATUMA ANAB MOHAMED HAJI

ZAINAB MOHAMED HAJI

ALI MOHAMED HAJI

ABDIKADIR MOHAMED HAJI

ABDIRIZAK HASSAN MOHAMED

DEKA ABDULLAHI DABAR.…….…..........APPELLANTS/APPLICANTS

VERSUS

ASHA ABDULLAHI

NUR ABDULLAHI

KHADIJA MOHAMED ALI

MOHAMED ABDULLAH….................……………….......RESPONDENTS

RULING

Before me is an amended Notice of Motion dated 24th January, 2017 filed by the appellant under Sections 1A,1B,3A,78,79G of the Civil Procedure Act (Cap 21) and Order 42 Rule 4 of the Civil Procedure Rules, seeking seven (7) prayers, some of which have already been spent as follows:-

1. (spent)

2. That leave be granted for the applicant/appellant to appeal out of time and the draft memorandum of appeal be deemed as duly filed.

3. (Spent)

4. That a stay for execution order in Garissa Kadhi’s Court Succession Cause 28 of 2015 be granted pending hearing and determination of this appeal.

5. That there be a stay of proceedings in Garissa Kadhi’s Court Succession Cause No. 28 of 2015 pending the hearing and determination of this appeal.

6. That there be a stay of proceedings in Garissa Kadhi’s Court Succession Cause No.28 of 2015 pending hearing and determination of this appeal.

7. That costs of the application be in the cause.

The application has grounds on the face of the Notice of Motion and is supported by the affidavit of FATUMA ANAB MOHAMED HAJI sworn on 24th January, 2017. Annexed to the affidavit is the ruling of the Kadhi’s Court in Garissa Kadhi’s Court Succession Cause No. 28 of 2015 in the matter of the estate of FATUMA DABAR MOHAMED (deceased), wherein the Kadhi’s Court delivered a ruling on 21st Ocotber, 2016 dismissing an application to vary the orders previously made by the Kadhi’s Court on 7th December 2015, and making orders as follows:-

1. This application is hereby dismissed.

2. The beneficiaries to appoint an agent to collect the rent proceeds for the estate so that each of the heirs to get their rightful shares.

3. Valuation of the estate by the directorate of town management and urban services.

4. This matter be mentioned on 27th October 2016.

It is from the above orders of the Kadhi’s court that the appellants felt it necessary to come to this court. The application has been opposed through a replying affidavit sworn on 2nd March, 2017 by Nur Abdullahi, the 2nd respondent, who supported the ruling of the Kadhi’s Court, and stated that the request for revision of the original Kadhi’s Court orders was grounded on falsehoods.

Counsel for the appellants Ali & Company also filed written submissions to the application and relied on several case authorities.

During the hearing of the application, Ms. Wanjiru, who appeared for the applicants/appellants relied on Section 79 (G) of the Civil Procedure Act to support the request for admission of an appeal out of time. Counsel admitted that the previous advocates Mohamed & Lethole had erroneously filed a Notice of Appeal instead of a Memorandum of Appeal, but asked that such mistake should not be visited upon the clients. Counsel thus urged the court to admit the appeal out of time.

Counsel submitted further that substantial loses would result to her clients if stay of execution of the Kadhi’s court orders was not granted as it would result in eviction of her clients from the rooms which they occupied, and relied on the provision of Order 42 Rule 6(2) of the Civil Procedure Rules and Article 159 (2) of the Constitution of Kenya 2010. Counsel relied on a number of court cases.

Mr. Kyalo for the respondents, other than the 3rd respondent, submitted that extension of time to file appeal under Section 79 (g) of the Civil Procedure Act (Cap 21) should only be granted by the court if good and sufficient cause was shown.

According to counsel, the mistake committed by the previous counsel herein to file a Notice of Appeal was not excusable under the Civil Procedure Act and Article 159 (2) (d) of the Constitution, as the said advocates were a reputable firm of advocates. Counsel emphasized that the law and rules of procedure were not made in vain and had to be complied with.

On the request for stay of execution, counsel submitted that the applicants had not demonstrated that they would suffer substantial loss, if stay was not granted. Counsel submitted further that eviction did not arise from the facts of the case – as from the ruling of the Kadhi it was clear that only Fatuma (1st appellant/applicant) actually was found to reside in one of the subject rooms. Counsel added also that the applicants had disregarded court orders by collecting all the rent from the premises which should not be allowed . Counsel lastly submitted that the case authorities relied upon by applicant’s counsel were Supreme Court cases except the case of PARTICK MAINA MWANGI – VS- WAWERU PETER- Nairobi High Court Miscellaneous Application No. 15 of 2015.

Mr. Onono for the 3rd respondent asked the court to consider the application on merits.

In response to the submissions of counsel for the respondents, Ms. Wanjiru for the applicants stated that the applicants had constructive possession of the subject premises under Sharia Law.

This is an application for leave to appeal out of time, and also for stay of execution of the ruling of the Kadhi’s Court, as well as an application stay for further proceeding in the Kadhi’s Court in the matter, pending the hearing of the appeal if admitted out of time.

I will begin by stating that prior to the hearing of the application, on 13th January 2017 this court granted stay of execution of the Kadhi’s Court orders in Garissa Succession Cause No. 28 of 2015 in relation to Plot No. 165 up to 13th March 2017. On that day, parties counsel agreed that their clients had proposed an arbitration to sort out the family dispute. However, that arbitration was not successful, and the application thus proceeded to hearing. I thus now have to make a decision on the prayers sought in the application.

With regard to extension of time to file an appeal from subordinate court to the High Court, Section 79 G of the Civil Procedure Act states as follows:

“79 G 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 for preparation and delivery to the appellant 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.”

The ruling of the Kadhi’s court sought to be appealed from was delivered on 21/10/2016. Thereafter a Notice of Appeal was erroneously filed by the previous advocate Mohamed & Lethome advocates on 26th October, 2016, and on the same day the said firm of advocates filed an application for stay of execution and injunctions, which was later withdrawn by the current advocates or the applicants.

The present Notice of Motion filled by the succeeding advocates and a draft Memorandum of Appeal dated 28th November 2016 were filed on 5th December 2016. This is the Memorandum of Appeal sought to be admitted out of time.

In my view, though the Memorandum of Appeal herein was filed outside the prescribed time, it is clear from the documents on record that appropriate steps were taken to file the appeal within time by the previous advocate, except for the mistake of filing a Notice of Appeal as if it were in the Court for Appeal. The said mistake by the advocates in my view should not be visited on the litigant. The fact that the firm of advocates was a prominent or even if one of the large established firms should not be a reason for this court to decline to extend time to appeal out of time if there intended appellant has good and sufficient cause for not filing the appeal in time. It is clear to me that the applicants had instructed their lawyers in time to file the appeal but the lawyer followed the wrong procedure. I grant the extension time.

With regard to the request for stay of execution pending appeal, Order 42 Rule 6(2) provides as follows:

6(2) No order for stay of execution shall be made under Sub-rule (1) unless:-

(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay, and

(b) Such security as the court orders for the performance of such decree or order as may ultimately be binding on him has been given by the applicant.

The application herein was filed on 5th December 2016, after a new advocate took over from the original advocate. The previous advocate had filed an application for stay of execution on 26th October 2016, after the Kadhi’s court made its orders on 21st October 2016 which was just 5 days afterwards. In my view, there was no inordinate delay in filing this application, the present application was filed on 5th December 2016 just after a new advocate took over.

With regard to substantial loss, I note that this is a delicate family succession matter. It related to occupation, use and benefits from buildings or rooms from the estate of a deceased person, which was dealt by the Kadhi’s Court and a decision made, and later the Kadhi’s Court was asked to review its decision, which review decision is the subject of this appeal. Each case has to be considered on its own merits. In my view, succession matters are very delicate, and require well considered decisions after giving parties a chance to be heard. In the circumstances of this matter where some beneficiaries claim constructive possession of the premises while others claim that some are wrongly receiving all the rents, and there is no pending appeal from the original decision of the Kadhi which was sought to be reviewed by the Kadhi, I find that the applicants will suffer substantial loss if the stay of execution and stay for the proceedings orders sought are not granted. The stay granted will mean retention of the original Kadhi’s court orders until the determination of the appeal.

As for security, I am of the view that this being a family succession matter, and on the facts placed before me, there would be no reason for ordering provision of security by the applicants.

I thus allow the amended Notice of Motion application dated 24th January 2017 and grant prayers 2, 4 and 5 therein. Prayer 6 is a duplication and therefore superfluous. Costs will be in cause. I will however fix a hearing date for the appeal.

It is so ordered.

Dated and delivered at Garissa on 10th October, 2017.

GEORGE DULU

JUDGE