[2022] KEHC 13922 (KLR)

In re Estate of Rioba Chacha Sirare (Deceased) (Succession Cause 53 of 2015) [2022] KEHC 13922 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13922 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 53 of 2015

RPV Wendoh, J

October 13, 2022

IN THE MATTER OF THE ESTATE OF: RIOBA CHACHA SIRARE (DECEASED) IN THE MATTER OF LAND PARCEL NO. BUGUMBE/MASABA/107 IN THE MATTER OF LAND PARCEL NO. BUGUMBE/MASABA/164 IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT

Between

Christine Rioba Marita

1st Petitioner

Maritha Rioba

2nd Petitioner

Magaiwa Rioba

3rd Petitioner

and

Magaiwa Rioba Chacha

Protestor

Ruling

1. The applicant herein, Magaiwa Rioba Chacha filed the instant application dated 30/3/2022. He is seeking the following: -i.Spent.ii.The court be pleased to issue an order for stay of execution and/or implementation of the judgement of this court delivered on 17/3/2022 pending hearing and determination of this application.iii.The court be pleased to issue an order for stay of execution and/or implementation of the judgement of this court delivered on 17/3/2022 pending the hearing and determination of the intended appeal.iv.The objector be granted leave to file an appeal to the Court of Appeal against the judgement of this court delivered on 17/3/2022. v.This court be pleased to extend time for lodging in this court a Notice of Appeal against the decision of this court delivered on 17/3/2022.

2. The application is supported by the grounds on its face and the supporting affidavit of the applicant sworn on 30/3/2022.

3. It is the applicant’s contention that he is dissatisfied with the judgement delivered by this court on 17/3/2022 on the distribution of the suit estate; he instructed his Advocates to lodge an appeal to the Court of Appeal; that since the 14 days for filing an appeal had lapsed, the application is necessary to seek orders for extension of time to lodge a notice of appeal; that the delay was occasioned by a glitch in the High Court filing system.

4. Further, the applicant contended that it is in the best interest of justice if the orders of stay of execution are granted or the appeal will be rendered a nugatory in the event execution is implemented. The application was not opposed despite the respondents being given ample time to file their responses. Mr. Singei Counsel for the respondents urged the court to proceed and render its ruling on the application.

5. I have duly considered the application. The issues for determination are: -i.Whether the applicant should be granted leave to file and serve the intended appeal out of time.ii.Whether stay of execution of the judgement and decree of 19/9/2019 should be granted.

6. Under Rule 59 of the Court of Appeal Rules, any person who desired to appeal to the Court of Appeal shall give notice in writing , which shall be lodged in sextuplicate with the registrar of the superior court within 14 days from the date of the decision. From the foregone, the applicant did not lodge the notice of appeal within the prescribed time hence this application.

7. A litigant who fails to lodge a notice of appeal within the prescribed time, can seek relief under Section 7 of the Appellate Jurisdiction Act which provides the instances where the High Court can extend time as follows:-“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.”

8. The plain reading of the provision is clear. The High Court has jurisdiction to extend time for appeals emanating from it to the Court of Appeal in three instances:-Giving notice of intention to appeal from the judgement of the High Court.Making an application for leave to appeal.Certify that a case is fit for an appeal.

9. In Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & another[2000] eKLR Shah JA held:-“The powers of the superior court to enlarge the time for lodging a notice of appeal out of time have been well defined by now. This Court in a recent decision delivered in the case of Peter Njoroge Mairo v Francis Gicharu Kariri & another, Civil Appeal (Application) No 186 of 1999, (unreported), said:“In our view section 7, above, should be given a construction which would obviate ridiculous result. The intention of the Legislature in enacting section 7, above, clearly appears to us to be that it can only be used and more specifically the very first time the intending appellant manifests his intention to appeal. It is for this reason that we agree with the remarks of Bosire Ag, JA (as he then was) in the case of Edward Allan Robinson & 2 others v Philip Gikaria Muthami, (Civil Application No Nai 187 of 1997) (unreported), where he remarked, in pertinent part, thus:‘Section 7, above was not, in my view, intended to cover appellants whose appeals have been struck out for incompetence and who desire to file competent appeals. Once a litigant files a valid notice of appeal and had obtained the necessary leave to appeal, where necessary, the matter respecting which an appeal is intended, is thereby removed from the jurisdiction of the superior court, except for limited matters in which specific jurisdiction has been conferred on it to deal with. Section 7, above, presupposes that an intending appellant has not taken any other steps in pursuance of that appeal."

10. The powers donated to the High Court under Section 7 of the Appellate Jurisdiction Act are clear and limited. This court can only come to the aid of a litigant who is desirous of filing a notice of appeal to the Court of Appeal for the first time and has run out of the stipulated timelines. This court does not have jurisdiction to grant leave to file an appeal out of time to the Court of Appeal. The powers to grant an applicant to file an appeal out of time, lies within the purview of the Court of Appeal. This court can only extend the time for lodging a notice of appeal against the judgement of this court.

11. The judgement was delivered on 17/3/2022. The notice of appeal ought to have been lodged within 14 days on or before 31/3/2022. I have carefully considered the grounds of the application. There is no specific reason given by the applicant on why he did not lodge the notice of appeal within the 14 days. The application is dated 30/3/2022 but it was filed on 7/4/2022. At the time when the application was being drafted, the applicant was within time to lodge a notice of appeal.

12. In my view, the delay was not inordinate. It is claimed that the delay was due to a hitch in the court’s filing system. This court cannot deny that the filing system has been without hitches causing unnecessary delays. The notice of appeal is a document which simply notifies the court and the other party in the suit of the intention of the applicant to appeal. For a party to lodge the notice of appeal, there is no need to file an application seeking leave to file the notice of appeal if they are well within time.

13. Be that as it may, the application has now been filed past the time stipulated to file the notice of appeal. It is the right of an applicant to seek justice within the different levels of the court system.

14. Pursuant to the provisions of Section 7 of the Appellate Jurisdiction Act, the following orders do issue:-a.The applicant is hereby granted 7 days from the date of this ruling to file and serve the Notice of Appeal.b.Stay of execution of the judgement and/or decree dated and delivered on 17/3/2022 do issue pending the hearing and determination of the intended appeal.c.There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 13TH DAY OF OCTOBER, 2022R. WENDOHJUDGERuling delivered in the presence of;Ms. Okota for the Applicant.Mr. Oywer holding brief Mr. Kisera for the Respondents.Nyauke Court Assistant.