[2022] KEHC 16451 (KLR)

In re Estate of Isaack Ngugi Njoroge-Deceased (Civil Appeal 27 of 2020) [2022] KEHC 16451 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16451 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 27 of 2020

RM Mwongo, J

December 14, 2022

IN THE MATTER OF THE ESTATE OF ISAACK NGUGI NJOROGE-DECEASED

Between

Johnson Ngugi Njoroge

1st Appellant

Tabitha Wanjiru Ngugi

2nd Appellant

and

Loise Njeri Kihungi

1st Respondent

Ann Wangaki Muitherero

2nd Respondent

Cecily Njoki Kamau

3rd Respondent

Ruling

1. The appellant filed a motion dated July 20, 2020, seeking orders,inter alia to stay of execution of the judgment of the lower court dated May 28, 2020, pending hearing of the application, and to restrain the respondents from selling, leasing, charging, or alienating the suit properties pending the hearing of the appeal

2. The 1st & 2nd Respondents filed a Preliminary Objection dated August 27, 2020 to the application dated July 20, 2020 on points of law on the following grounds:a.That the application and the appeal offend the provisions of Section 79 G of theCivil Procedure Rules Cap 21 Laws of Kenya.b.That the application and the entire appeal are incompetent and an abuse of the court process.c.That the application and the entire appeal be struck out with costs.

3. The 3rd Respondent filed a Preliminary Objection dated August 14, 2020 to the application dated 20/7/2020 and the entire appeal seeking to have the two struck out with costs on the following grounds:a.That the appeal was filed out of time and is accordingly incompetent and an abuse of the court process.b.No substantive orders can be issued in an incompetent appeal.

4. Parties filed written submissions as directed by the court

5. The appellants’ submissions are that section 79G of Civil Procedure Act provides for 30 days as the time allowed in filling an Appeal from the subordinate Court. They filed a notice of appeal in time on June 15, 2020. The Appeal was then filed vide a memorandum of appeal dated July 10, 2020 and received on the same date. The letter asking for proceedings in the lower Court at Wanguru is also dated the same date.

6. The appellants submit that the memorandum of Appeal was filed ten (10) days late, which delay is not inordinate. They add that they had asked for proceedings which to date have not been supplied by the lower court.

7. The appellants argue that Article 159(2) (b) of the constitution of Kenya 2010, allows the court wide discretion to ensure that justice is not denied to a party based on technicalities such as this. This is also found under section 95 of civil procedure Act and order 50 Rule 6.

8. The appellant prays that this honorable Court exercises its discretion under section 79G and section 95 Civil Procedure Act and Article 159 (2) (d) of the constitution of Kenya, 2010 as the delay is explainable and the same is not inordinate. Further, they state that the Respondents will not be prejudiced in any way as the appeal will be determined on merit.

9. The 1st and 2nd respondents submit that the Appellants were supposed to file the appeal within 30 days from May 28, 2020, that is by June 26, 2020 but the same was filed on July 27, 2020 about 60 days later without leave of the court. They have not satisfied the Court why the appeal may be admitted out of time. There is no good and sufficient cause for not filing the appeal in time.

10. They referred to Machakos ELC Case No.232 of 2017 Boniface Mutinda Kabaka v David Mutia & 10 others where the court struck out an amended defence and counter-claim filed out of time without leave of the court after expiry of fourteen days of service after close of pleadings. They also referred to Machakos HC Civil Appeal No 142 of 2013 Dilpack Kenya Limited v William Muthama Kitonyi where the court held that any appeal whose substratum no longer exists, is incompetent. The appeal was consequently struck out.

11. The respondents submitted that the Appellants never sought leave to file the appeal out of time. The appeal is thus incompetent and the same sought to be struck out with costs.

12. The 3rd respondent submits that the appeal is incompetent and an abuse of the court process. The judgment appealed against was delivered on the 28/5/2020 yet the appeal was filed on the 10/7/2020 some 13 days outside the 30 days provided under section 79G of the Civil Procedure Act This renders the entire appeal incompetent and the substantive order which the court can lawfully make is to strike out the entire appeal and the interlocutory application dated 20/7/2020.

Analysis and Determination 13. Section 79G CPA provides for the time for filing appeals from subordinate courts as follows:“Every appeal from a subordinate court to the High Courtshall 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 for not filing the appeal in time.” (Emphasis added).

14. The provisions of that section are couched in mandatory terms

15. According to the celebrated case of Mukisa Biscuits Manufacturing Co Ltd v West end Distribution Ltd [1969] EA 696 a preliminary objection is:“a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”

16. The respondents’ objections clearly fit into this definition on the ground that the appeal was filed outside of the statutory timeframe provided by law. Accordingly, they say it is incompetent and an abuse of the court process.

17. Whilst the notice of appeal was filed on time, the Memorandum of Appeal dated 10th July, 2020 and filed in court on July 22, 2020. The appeal is against the judgement of Hon GM Mutiso (PM) in Succession Cause No 118 of 2016 delivered on May 28, 2020 at Wang’uru.

18. Further, the respondents argue that the Appellants never sought leave nor have they in any way satisfied the Honourable Court why the appeal may be admitted out of time. There is no good and sufficient cause for not filing the appeal in time.

19. The appellant submit that the memorandum of Appeal was filed ten (10) days late, which delay is not inordinate, and prays that this honorable Court exercises its discretion under section 79G and section 95 Civil Procedure Act and Article 159 (2) (d) and deem the appeal as properly filed.

20. The principles for extension of time have been well settled in Nicholas Kiptoo Korir Arap Salat v Independent Electoral & Boundaries Commission & 7 Others, [2014]eKLR where the Supreme Court held as follows:“By filing an appeal out of time before seeking extension of time, and subsequently seeking the Court to extend time and recognize such ‘an appeal’, is tantamount to moving the Court to remedy an illegality. This, the Court cannot do.To file an appeal out of time and seek the Court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the Court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence”. (Emphasis added).

21. In light of the foregoing, I find and hold that the court cannot exercise its discretion to remedy an illegality that has already been committed.

22. Accordingly, the preliminary objections succeed, and the application is dismissed and the appeal is hereby found to be incompetent and is struck out with costs.

23. Orders accordingly.

Delivered at Kerugoya on this 14th day of December, 2022. ..................................RICHARD MWONGOJUDGEIn the presence of:Migwi for the AppellantsKimata holding brief for Ombachi for 1st and 2nd RespondentsNo representation for the 3rd RespondentMr. Murage Court Assistant