[2019] KEHC 5074 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION APPEAL NUMBER 1 OF 2018

IN THE MATTER OF THE ESTATE OF ABDULAZIZ AHMED (DECEASED)

FAIZ ABDULAZIZ AHMED ----------------------------------- APPELLANT

VERSUS

FEISAL ABDULAZIZ AHMED ----------------------------- RESPONDENT

RULING

1. Before court is the application dated 22nd February, 2018. The orders sought are;

1. Spent.

2. Spent.

3. THAT this Honorable Court does issue an order of stay of proceedings at the Kadhi’s court with respect to Succession Cause Number 2 of 2015 pending hearing and determination of this application.

4. THAT this Honourable Court does admit the applicants appeal against the whole of the decision of the Kadhi’s Court for hearing and subsequently order a stay of proceedings in the Kadhi’s Court pending determination of the appeal.

5. THAT costs of this application be provided for.

2. The application is based on grounds;

1. THAT the judgment in succession cause 2 of 2015 at the Kadhi’s Court Nakuru where the applicant herein was a respondent was delivered on 29th June, 2015 and decree extracted on the 30th May, 2017.

2. THAT however, the decree that was extracted as a final expression of the judgment of the court was not at all in consonance with the judgment as it had extraneous issues that were not in the judgment of the court.

3. THAT the decree as extracted could not be effected by the co-administrator applicant herein.

4. THAT the respondent filed a contempt application against his co-administrator/applicant claiming that he has refused to obey the court instructions i.e. to give effect to the decree of the Kadhi’s Court.

5. THAT the application for contempt of court as filed was served upon the respondent’s/applicant’s herein then advocate on record and not upon the respondent in person.

6. THAT the respondent to the contempt application the applicant herein was never aware of the contempt application and the notice to show cause against him up until he was arrested and brought before the Kadhi’s Court.

7. THAT on the 29th January, 2018 the contempt application for the co-administrator/applicant herein to show cause why he should not be committed to civil jail came up for show cause but the Kadhi made orders that the co-administrator to effect the decree within 30 days or go to jail for a period of 6 months.

8. THAT the applicant herein was not granted an opportunity to show cause by the Kadhi why the decree of the Honourable Kadhi’s Court could not be effected.

9. THAT from the foregoing it is evidence that the applicant herein will be committed to civil jail without being granted an opportunity to demonstrate why the decree of the Honourable Kadhi’s Court cannot be fully implemented.

10. THAT it is in the interest of justice that the proceedings at the Kadhi’s Court be stayed pending hearing and determination of the application filed herewith and the appeal.

11. THAT the respondent stands to suffer no prejudice should the application herein be allowed.

3. A supporting affidavit sworn by Faiz Abudlaziz Ahmed on the 22nd February, 2018 is also on record.

4. In a nutshell, the applicant’s case is that the applicant herein was required to effect a decree of the Kadhi’s Court pursuant to a judgment of that court delivered on 29th June, 2015.

5. It is urged that the decree as extracted was not at all in consonance with the judgement as it contained extraneous issues that were not in the judgment of the court and the applicant was unable to give it effect.

6. The applicant avers that he was condemned unheard as a contempt application lodged before the Kadhi’s Court was served upon his erstwhile advocate on record. He was subsequently arrested and brought before the Kadhi’s Court on a notice to show cause. He was ordered to give effect to the decree in default to serve six (6) months in jail.

7. It is urged that the application was not given a chance to demonstrate why the decree of the Kadhi’s Court cannot be fully implemented.

8. The application is opposed and in a replying affidavit Feisal Abdulaziz Ahmed has accused the applicant of material non-disclosure.

9. The applicant, it is stated, changed advocates from the firm of Agnes Njoroge and Company Advocates to the firm of Wachira, Wakhomba, Aim and Associates in Succession Cause Number 2 of 2015 on or about the 15th March, 2018.

10. The applicant then filed application dated 13th March, 2018 in Succession Cause Number 2 of 2015 seeking to stay the warrants of arrest and to set aside the judgment of 29th June, 2015.

11. The said application was canvassed and a ruling delivered on 2nd July, 2018 dismissing it with costs.

12. On 31st August, 2018, the respondent’s advocates were served with an application dated 22nd February, 2018 filed in High Court Succession Appeal Number 1 of 2018 seeking among other orders suspending/or lifting the warrants of arrest and stay of proceedings in the Kadhi’s Court pending determination of the appeal.

13. It is urged that the firm of Wachira Wekhomba, Aim & Associates is not properly on record as leave of court ought to have been sought before the said firm came on record in place of Agnes Njoroge & Company Advocates since judgment had already been delivered in the matter.

14. The applicant, it is averred has filed two (2) applications in two (2) different courts seeking same orders and concealed one of them awaiting the decision in the other which in itself is an act of utmost bad faith on the part of the appellant.

15. The application was canvassed by way of written submissions.

16. I have considered the application, the supporting affidavit evidence and grounds as well as the reply and submissions on record.

17. Of determination is whether the court should admit the applicant’s appeal against the whole of the decision of the Kadhi’s Court in Kadhi’s Court Succession Cause Number 2 of 2015for hearing and whether the court should order a stay of proceedings at the Kadhi’s Court pending determination of the appeal.

18. As a preliminary point the court has to determine the appropriateness of the application, the same having been challenged on ground that it was filed by a firm of advocates not properly on record.

19. Order 9 rule 9 of the Civil Procedure Rules provides;

“Order 9 rule 9 where there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court –

(a) upon an application with notice to all the parties; or

(b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”

20. In our instant suit, there is no evidence of any leave sought and/or granted before the firm of Wachira Wekhombe, Aim & Associates came on record in place of the firm of Agnes Njoroge and Company Advocates.

21. This is in clear contravention of the provisions of law as enshrined in order 9 rule 9.

22. Confronted by a similar situation in the case of JOHN LANGAT VS KIPKEMOI TERER AND 2 OTHERS [2013] eKLR, this court Muchelule J pronounced himself as follows;

“There was no application made to change advocates. In the replying affidavit the appellant swore that there was a consent entered into between his previous advocates to effect change. This was done following the judgment. He annexed the consent. There is no evidence that the respondents were put in the picture but more important, the consent could not effect the change of advocates “without an order of the court.” No such order was sought or obtained. It follows and I agree with Mr. Theuri and Mr. Nyamweya that Anyoka and Associates are not properly on record for the appellant and therefore the appeal and the applications are incompetent.”

23. I further concur with W. Korir J in the case of TARWADI VS MUEHLEMANN [2019] eKLR where he noted the importance of Order 9 rule 9 and held the view that the provision of the law was meant to protect advocates from mischevious clients who will bolt once judgment is delivered, replace the advocate with another or act in person. The judge went on to note that order 9 does not foresee how rule 9 can be sidestepped hence the enactment of rule 10 which provides;

“Order 9 rule10 An application under rule 9 may be combined with other prayers provided the question of change of advocate or party intending to act in person shall be determined first.”

24. The law and the rules made thereunder are meant to aid the administration of justice in an orderly manner. They must be followed and Article 159(d) or even the oxygen rule is not a panacea for all instances of flouting of rules.

25. Total disregard of legal procedures in the administration of justice would be a sure invite of anarchy into the administration of justice.

26. The sentiments of Kiage JA in his dissenting judgment in ZACHARIA OKOTH OBADO VS EDWARD AKANG’O OYUGI AND 2 OTHERS [2014] eKLRilluminate the matter further. The Hon. Judge of appeal stated;

“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were even meant to aid in the overthrow or destruction of rules and procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”

27. I am persuaded that the application before court was drawn by a firm of advocates not properly on record and it is one for dismissal.

28. In answering the question on whether the court should admit the appeal and order a stay of proceedings at the Kadhi’s Court, I noted a lot of energy has been needlessly expended on faulting the decision of the Hon. Kadhi by the applicant and the defence of the decision vehemently by the respondent. I think such energy ought to have been reserved to be unleashed at the appellate court if the appeal was to see the light of day.

29. In doing so, none of the parties adequately addressed itself to the principles applicable in exercise of the court’s discretion whether or not to admit an appeal out of time.

30. Section 79G of the Civil Procedure Act provides 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 a period any time 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.

Provided that an appeal may be admitted out if time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

31. Judgment in the Hon. Kadhi’s Court was delivered on 29th June, 2015. The memorandum of appeal herein was filed on 22nd February, 2018. This is in contravention of Section 79G of the Civil Procedure Act. It was incumbent on the applicant to satisfy the court that he had a good and sufficient cause for not filing the appeal in time.

32. An applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so, since as was held in Feroz Begum Qureshi and another vs Muganbhai Patel and Others [1964] EA 633there is no difference between the words “sufficient cause” and “good cause”.

33. It was held in Daphne Parry vs Murray Alexander Carson (1963) EA 546 that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction so as to advance substantial justice when no negligence nor inaction, nor want of bonafides is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy and the appeal should be dismissed as time barred even at the risk of injustice and hardship to the appellant.

34. A summary of the principles to be considered in exercising the discretion whether or not to enlarge time were set out in the decision in First American Bank of Kenya Limited vs Gulab P. Shah & 2 Others (2002) I EA 65. The court enumerated the factors to consider as;

i) The explanation if any for the delay.

ii) The merits of the contemplated action.

iii) Whether or not the respondent can be adequately compensated in costs for any prejudice he may suffer.

35. In that case, the court while vacating orders of stay found as a fact that the appellant’s memorandum of appeal was filed on 5th July, 2013 yet the judgment appealed from was delivered by the lower court on 17th January, 2013 which was five (5) months after the judgment.

36. A party seeking the exercise of discretion in its favour must place before the court material to satisfy the court why discretion should be exercised in its favour.

37. What then is the explanation for the default in our case? Despite the long delay in the filing of the appeal, no good or sufficient cause is given in the affidavit evidence provided.

38. It is the applicants constitutional right to appeal. However, as held in VELJI SHAHMAD vs SHAMJI BROS AND POPTLAL KARMAN AND COMPANY (1957) EA;

“In the interests of the public the court ought to take care that appeals are brought before it in proper time and before the proper court or registry and when a judgment has been pronounced and the time for appeal has elapsed without an appeal, the successful party has a vested right to the judgment which ought, except under very special circumstances to be made effectual. And the legislature intended that appeals from judgments should be brought within the prescribed time and no extension of time should be granted except under very special circumstances.”

39. In our instant suit there is manifest discernable inaction by the applicant which is not explained. For a judgment that was delivered on 29th June, 2015 and to have a memorandum of appeal filed on 22nd February, 2018, the onus on the applicant to show that he had good and sufficient cause for not filing the appeal in time was formidable.

40. This formidable onus was met with a very feeble attempt and the application herein was destined for failure.

41. With the result that, I find the application dated 22nd February, 2018 is completely without merit. Same is dismissed with costs to the respondent.

Datedand DeliveredatNakuruthis10thday ofJuly, 2019.

A. K. NDUNG'U

JUDGE