[2023] KEHC 25491 (KLR)

Gab International Construction v Wanjala (Civil Appeal E004 of 2022) [2023] KEHC 25491 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25491 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E004 of 2022

DK Kemei, J

November 17, 2023

Between

Gab International Construction

Appellant

and

Mark Nyongesa Wanjala

Respondent

(Notice of Appeal out of time and stay of execution against the decision of Justice LN Mutende delivered on October 19, 2022 vide application dated November 8, 2022. Civil Appeal E004 of 2022 )

Ruling

1. Before me are two Applications dated March 17, 2023 and March 31, 2023 seeking diametrically different orders. The first application for consideration is the respondent’s Notice of Motion dated March 17, 2023, brought under sections 1A,1B,3 and 3A of the Civil Procedure Act, orders 51 rule 1 of the Civil Procedure Rules. The application seeks the following orders:i.Spent.ii.That the stay orders granted by this court on February 23, 2023 be set aside and the applicant do proceed with execution of the judgment herein.iii.The costs be paid for by the respondent.

2. The application is supported by the grounds on its face and a sworn Affidavit by Robert Wamalwa Advocate. The respondent in this application despones that it has complied with the orders issued by the honourable court issued on February 23, 2023 where the court gave the appellant 7 days to file Notice of Appeal out of time and to deposit the decretal sum in a joint interest earning account in the name of the advocates on record. He argues that that the appellant as at the time of filing the application had not served him with a Notice of Appeal and as such he prayed that the court set’s aside its orders and allows him to proceed with execution.

3. The appellant filed a Replying Affidavit dated March 27, 2023 sworn by Noor Haji Ali, the director of the respondent in opposition to the Application wherein he averred inter alia; that the draft Notice of Appeal had been annexed to their Application for leave to lodge appeal out of time and which was to be regularized by the registry; that they engaged counsel for the respondent and forwarded the account opening forms but which the said counsel failed to act on them and deliberately chose to ignore them until the timeline elapsed when they maliciously filed the Application dated March 17, 2023 seeking to execute the decree; that the respondent had been ready and willing to comply with the court order but that the applicant’s counsel had been a hindrance; that the respondent’s application is intended to steal a match against the appellant. The appellant thus sought for the dismissal of the respondent’s application dated March 17, 2023 and that his application dated March 31, 2023 be allowed as prayed.

4. The second application for consideration is the appellant’s Notice of Motion dated 31st March 2021, brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act, orders 50 rule 6 of the Civil Procedure Rule, 2010 and article 159 of the Constitution, 2010. The application seeks the following orders:i.Spent.ii.That this honourable court be pleased to extend time within which the appellant can comply with orders No 2 of the Ruling delivered in this matter on the 23rd of February which is to deposit the entire decretal sum in a joint interest earning account in the name of both counsels until such a time that the respondent’s advocate, shall fill the account opening forms sent to them on the March 8, 2023. iii.That the costs of this Application be provided.

5. The application is supported by the grounds on its face plus a sworn Affidavit by Bryan Khaemba, counsel on record for the applicant therein. It is deposed that the appellant herein sought for leave to file a Notice of Appeal out of time and stay of execution against the decision of Justice LN Mutende delivered on October 19, 2022 vide application dated November 8, 2022. It is averred that the court granted the application by allowing the appellant 7 days to file the Notice of Appeal and 30 days to deposit the entire decretal sum in a joint interest earning account in the name of both advocates.

6. Counsel deposed that the appellant herein complied with the court’s order save for the order to deposit the decretal sum due to the uncooperative conduct of the respondent’s counsel who has refused to sign the necessary forms required to register the joint interest earning account. It was further his contention that a Notice of appeal dated November 8, 2022 was filed or deemed as filed when the court allowed the application dated November 8, 2022. It was his prayer that the court expands the time frame for compliance on the pending order.

7. The respondent in this application filed a Replying Affidavit dated April 19, 2023 sworn by Robert Mugaga Wamalwa in opposition to the application. Learned counsel averred that the Appellant failed to file the Notice of Appeal within the stipulated timeline and hence compliance of the second order on deposit of decretal sums could not be ventured into in the absence of an appeal. It was further averred that this court is now functus officio and that the appellant should move to the Court of Appeal for redress. It was finally averred that litigation must come to an end and that the appellant’s application dated March 31, 2023 should be dismissed and the court do proceed to allow the respondent’s application dated March 17, 2023.

8. The Applications were canvassed by way of Written Submissions. Both parties duly complied.

9. The respondent filed submissions on August 30, 2023 in support of his application dated March 17, 2023 and in opposition to the appellant’s application dated July 31, 2023. Learned counsel reiterated the averments in his application and Replying Affidavit. It was his Submission that the annexure of the Notice of appeal to the appellant’s application was questionable and that it has never been served upon the respondent as directed by the court. Further, and in opposition to the appellant’s application, learned counsel submitted that the court was functus officio and can therefore not extend its orders and that the appellant ought to have moved the Court of Appeal for the orders sought. He urged the court to allow his application and dismiss that of the appellant.

10. The appellant’s counsel submitted on two issues. On the first issue, it was submitted that the respondent did not set forth any substantial grounds why the Court should vacate/vary its orders as issued on February 23, 2023. Counsel submitted that in its application dated November 8, 2023, it had sought for orders to have its Notice of Appeal dated the same date be deemed as properly on record which application was allowed. He submitted that the court did not order for the filing of a fresh Notice of Appeal and therefore there was no wrongdoing on their part as the one dated November 8, 2023 had already been executed by the deputy registrar and on the lapse of 7 days the same was deemed as duly filed.

11. On the second issue, the appellant’s counsel submitted that his application has been brought before this court with clean hands and that it was in fact the respondent who had erred by frustrating and preventing the compliance of the court’s directions by not signing the account opening forms. Reliance was placed on the case of Taib Ali Taib vs. Nation Media Group Limited (2018)eKLR. He therefore urged the court to allow the application dated March 31, 2023 and dismiss the one dated March 17, 2023.

12. I have considered the applications, the responses filed thereto and submissions filed by the learned counsels. I have also considered the decisions that were relied upon. The single issue which in my opinion arise for determination is whether a prayer for extension of time if found merited can validate an appeal which was filed out of time.

13. From the evidence placed before the Court, it is clear that the appellant sought leave to file a Notice of Appeal out of time against the judgment of the Court issued on October 19, 2022. The appellant is said to have filed a Notice of Appeal dated November 8, 2022 and had the same filed and signed by the Deputy Registrar. Notably, the same it was filed out of time and without leave of the court. It is this very Notice of Appeal the respondent sought in the Application dated November 8, 2022 to have it deemed as properly filed.

14. I have perused the court record and note that the said Notice of Appeal is indeed signed by the deputy registrar Bungoma Law Courts and that there is a receipt to the effect that the same was paid for and filed. I also note that the application dated November 8, 2022 and the annexed supporting affidavit were served upon the respondent and who had the opportunity to peruse the documents moreso the Notice of appeal attached thereto. I also note that the respondent’s argument is based on the assertion that they wrote a letter to the Court to find out whether the appellant had filed the Notice of Appeal in compliance with the order of the Court.

15. The Court of Appeal in CA 71/2016 Charles Karanja KiiruvsCharles Githinji Muigwa [2017] eKLR cited with approval Aburili J in Martha WambuivsIrene Wanjiru Mwangi &another (2017) eKLR where the court stated:“In my view, the use of the term “admitted” connotes both the act of allowing an appeal to be filed out of time and also the act of allowing or permitting an appeal already filed to be admitted out of time……” see also APA Insurance Ltd vs Michael Kinyanjui Muturi (supra).

16. Applying the above case, it is my considered view that in allowing the appellant’s application to admit the Notice of appeal already filed though out of time, the court admitted to its record the Notice of appeal as being properly filed and that the same therefore stands. The counsels’ rival arguments on the issue of an appeal out of time appear to me to be akin to splitting hairs. It is clear that the notice of appeal had already been paid for and signed by the deputy registrar and that what remained was to regularize the same by serving the respondent. There is evidence that the respondent was duly served with the appellant’s application dated November 8, 2022 which contained the said draft notice of appeal. Again, since the Respondent already had the said notice of appeal in his possession, then he was deemed to have been served with it. The respondent could not just sit and wait to be served once again. In any case, the maxim of equity that equity treats as done which ought to be done must be invoked in the circumstances. The appellant had already paid for and filed the said notice of appeal albeit out of time. Once the appellant’s application dated November 8, 2022 was allowed, it was optional for the appellant to file a fresh one or rely on the already filed notice of appeal which had been duly endorsed by the deputy registrar. It is thus clear that the respondent’s refusal to execute the account opening forms was a deliberate act meant to frustrate the court process. It is in that regard that i find merit in the appellant’s application dated March 31, 2023. In the same vein, it is my finding that the respondent’s notice of motion dated March 17, 2023 lacks merit and that the same is hereby dismissed.

17. On the issue of opening of the joint interest earning account, it is noted that the respondent did not dispute the appellant’s assertions that the respondent has been adamant and that counsel is yet to sign the requisite account opening forms. It would appear that the respondent’s counsel had been under the false impression that the appellant must file a fresh notice of appeal while the true position is that it had already filed and had been endorsed by the deputy registrar and that it had the choice of whether to file a fresh one or rely on the filed notice of appeal which had already been served upon the respondent. As the appellant opted for the latter, then I find that the position taken by the counsel for the respondent was and is erroneous. I therefore find merit in the appellant’s application for enlargement of time as sought in their application dated March 31, 2023 so that the orders made on February 23, 2023 are finally complied with.

18. As the two applications have been determined as aforesaid, the respondent’ counsel is hereby ordered to execute the requisite account opening forms within the next seven (7) days from the date hereof and serve the same upon counsel for the appellant who will execute the same within seven (7) days. Each party to bear their own costs.It is so ordered.

DATED,SIGNED AND DELIVERED AT BUNGOMA THIS 17TH DAY OF NOVEMBER,2023. D. KEMEIJUDGEIn the presence of:-Miss Ngugi for Khaemba for AppellantSabwan for Wamalwa for RespondentKizito Court Assistant