[2023] KEHC 25405 (KLR)

In re Estate of Edward Rayori Ochar (Deceased) (Succession Appeal E007 of 2022) [2023] KEHC 25405 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25405 (KLR)

Republic of Kenya

In the High Court at Kisumu

Succession Appeal E007 of 2022

RE Aburili, J

November 14, 2023

IN THE MATTER OF THE ESTATE OF THE LATE EDWARD RAYORI OCHAR

Between

Phoebe Orido Rayori

Appellant

and

Betty Makokha Okutoi

1st Respondent

Eric Odhiambo Rayori

2nd Respondent

Chepkoech Evaline Ruto

3rd Respondent

Ruling

1. This court is tasked with determining what is in essence a preliminary objection raised by the respondents’ advocate, Mr. Bruce Odeny, seeking to strike out the instant appeal for being filed out of time.

2. Mr. Odeny submitted that they learnt of the instant appeal in the course of their normal duties in court and photocopied the Memorandum of appeal only to notice that it was filed out of time. He further submitted that the appeal was filed on the 24. 10. 2022 without leave of court and hence there was no competent appeal before court.

3. In response, Mr. Ochanda counsel for the appellant submitted that their work in presenting the instant appeal ended once they lodged the appeal on the 27. 7.2022. It was his submission that the court sent them an invoice much later and they made the payment in October and the receipt issued much later. Mr. Ochanda submitted that the lapse in filing the appeal could not be visited on the appellant.

4. The appeal herein arose from a judgement of the subordinate court delivered on the July 21, 2022.

5. The law regarding the timelines for filing of appeals from subordinate courts is Section 79G of the Civil Procedure Act, Cap 21, Laws of Kenya. An appeal should be filed within thirty days from the date of the decree or order appealed against, excluding 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.

6. The section provides that:“79G.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 preparation and delivery to the appellant of 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 of not filing the appeal in time.”

7. In Josephine Wambui Mwangi v Michael Mukundi Ngugi [2021] eKLR, my brother Eboso J had this to say concerning an appeal filed out of time without leave of court and I concur that:“No attempt was made to have the appeal admitted out of time. In the circumstances, the court cannot condemn the respondent to respond to an appeal that has been filed in blatant disregard of the law and no attempt has been made to regularize the defect. The net result is that the court agrees with the respondent that this appeal stands to be struck out on the ground that it was filed more than one year outside the stipulated time and without an order enlarging time for bringing the appeal.”

8. The same position holds in criminal proceedings. In PS v Republic[2021] eKLR F Gikonyo (J) held that:“No leave has been obtained to file the appeal out of time. An appeal filed out of time without leave of the court is incompetent and the court cannot lawfully exercise jurisdiction on such appeal. Limitation of actions is a substantive matter of law. It serves a noble objective to ensure finality of litigation. Thus, failure to obtain leave to file proceedings out of time is not a mere technical omission but a substantial lapse that goes to the root of the proceeding itself.”

9. I observe that the judgement being appealed against was delivered on the 21. 7.2022 and the Memorandum of Appeal filed on the 24. 10. 2022. This is three months after the impugned judgement was delivered. The appeal herein, therefore, was filed way outside the thirty days, allowed by section 79G of the Civil Procedure Act. There is no certificate of delay exhibited, and, therefore, the appellant did not benefit from the exclusion permitted under section 79G above.

10. What was the reason given by the appellant for the delay? The appellant’s advocate visited the delay on the court’s e-filing system that gave them the invoice later after the expiration of the time to lodge an appeal.

11. My understanding of the e-filing system is that once a party lodges a document, the same is accessed and an invoice issued. Even in instances where the system is down, it is inconceivable that the system can be down for 2 months without a party who is conscious of legal timelines seeking for support. That implies that there was no document being filed throughout the whole judiciary and this would have definitely been evident throughout the whole country and could not just have affected the appellant alone.

12. In addition, it is clear from the proceedings herein that this court was moved through the actions of the respondent. Even if the court system issued the appellant with the invoice as late as the appellant’s counsel alleges, inconceivable as it may be, it is not clear why it took another year for this court to be moved and in this case, as noted hereinabove, it was the respondents who moved the court.

13. In my view, the appellant and their advocates have through their conduct in this appeal demonstrated their lack of desire to have this appeal concluded. I say so because no application was ever made for enlargement of time within which the appeal ought to have been filed and in addition, the appellant never moved the court to have the appeal heard and determined since its being filed out of time.

14. Section 79G has a proviso, which gives a window to the appellant, who finds himself outside the time allowed for filing appeal, which is by asking the court to allow admission of an appeal out of time, if there is good and sufficient reason for not filing the appeal in time. There is no evidence that the appellant obtained leave of court for admission of the appeal out of time.

15. Where an appeal is filed outside the statutory period and no effort is made to seek to validate such an appeal by seeking and obtaining an order under the proviso to section 79G of the Civil Procedure Act to enlarge the time for filing of such an appeal or to have the appeal as filed out of time deemed to be duly filed, such an ‘appeal’ is no appeal at all. It is incurably and fatally incompetent and amenable to be rejected without delving into the merits thereof. Such is not a procedural error. It is an error that goes to the root of the appeal as it is the leave that would accord this court the jurisdiction to hear and determine an appeal that is filed out of time. See Michael Onyango Owala v Republic [2018] eKLR.

16. Thus, an appellate court would have no jurisdiction to entertain an appeal which is filed out of time without leave of court.

17. For the above reasons, I find this appeal fatally incompetent, for it was filed out of time, and without leave of court, and as I have no jurisdiction to entertain it, I hereby strike it out, with an order that each party bear its own costs of the appeal.

18. I so order and proceed to close this file.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE