[2021] KEHC 5818 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

P & A NO. 68 OF 2005

IN THE MATTER OF THE ESTATE OF SHADRACK KHAOYA MASONI-DECEASED

MESHACK KHAOYA...............................................................................1ST PETITIONER

CHARLES SOITA KHAOYA...................................................................2ND PETITIONER

FRED NYONGESA KHAOYA.................................................................3RD PETITIONER

RULING

This ruling relates to 2 applications. The first application proffered by Fred Nyongesa Kahoya, dated 17th October, 2019, seeks;

1. That the 1st and 2nd petitoners be directed to sign the requisite transfer forms RL 19 and RL 7 mutation forms and any other requisite form transferring the suit land to the beneficiaries to give effect to the certificate of confirmation of grant dated 21st December, 2017 within 14 days .

2. That in default, this honourable court do order the Deputy Registrar of this court to sign the said transfer forms RL 19, RL 7, mutation forms and any other requisite forms on behalf of the 1st and 2nd respondents to give effect to the certificate of confirmation of grant dated 21st December, 2017.

3. Costs of the application.

The grounds in support are that the certificate of confirmation was issued jointly to Fred Nyongesa Khaoya, Peter Mafunga Kahoya and Charles Soita Kahoya on the 21st December, 2017. That sub-division and transfer of the property has not been done to date because the 1st and 2nd respondents have refused to execute the requisite forms to give effect to the certificate of confirmation granted to them and is hampering other beneficiaries from acquiring titles to the land.

The second application dated 21st January, 2020 proffered by Meshack Khaoya and Charles Soita Khaoya seeks;

1. That this court be pleased to extend time for giving notice of intention to appeal and leave to appeal against the judgement herein to the applicants.

2. Costs.

The applicants depone that this court delivered its judgement on 21st September, 2017. That their advocate then filed a notice of appeal on 25/9/2017 but for unknown reasons, the same was not pursued and now they have new counsel on record who withdrew the appeal. That the intended appeal has high chances of success.

Directions were given that the two applications be heard together and further that the same be disposed of by way of written submissions. All the parties complied.

Having scrutinized the respective applications, the affidavits both in support and in reply thereto and the rival submissions presented by the parties, the 2nd application dated 21st January, 2020 ought to be disposed of first as it will have a direct bearing on whether the 1st application will stand.

The applicant seeks this court to invoke its discretionary power and extend time within which to issue notice appeal for the sole reason that his advocate failed to take steps to have the appeal prosecuted.

This court delivered its judgement on 21st September, 2017. The applicant filed his notice of appeal on 26th September, 2017 through the firm of Annet Mumalasi & Co. advocates.

By consent dated 6/2/2018, the firm of Athung’a & Co. Advocates came on record in place of Annet Mumalasi, The incoming firm of advocates then filed an application in January, 2019 seeking to revoke the certificate of confirmation of grant which application was withdrawn on 1/7/2019. The 3rd petitioner the filed his application on the 31st October, 2019.

In Aviation Cargo Support Limited V St. Mark Freight Services Limited [2014] eKLR,G.B.M. Kariuki, JA. observed;

……… Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was practicable.

In the instant case, the applicant blames mistake of counsel. In Itute Ngui & Anor vs. Isumail Mwakavi Mwendwa Civil Application No. Nai. 166 of 1997, Omolo, JA held that

whereas advocate’s bona fide error is a special reason for extension of time within which to appeal, the nature and quality of the mistake must be considered. It is therefore clear that whereas inadvertence may be a ground for extension of time, the nature and quality of the inadvertence must be disclosed for consideration by the Court. It therefore does not suffice to simply state that the failure to comply with the prescribed timelines was due to inadvertence, as the applicant did in this case.

Having perused the proceedings, there is nothing showing that at any given time, the applicant was not represented. When the applicant’s advocates came on record, they chose to file an application to revoke grant instead. That application was later withdrawn before the instant application was filed.

In the circumstances, this court the application dated 21st January, 2020 filed by Meshack Khaoya and Charles Soita Khaoya without merit and is hereby dismissed. I allow the application by the 3rd petitioner, Fred Nyongesa Khaoya dated 17. 10. 2019.

The 1st and 2nd petitioners Meshack Khaoya and Charles Soita Khaoya do sign the necessary transfer forms within 30 days from today’s date.

If the 1st and 2nd petitioners fail to do so within 30 days from todays’ date, the Deputy Registrar do sign all the documents including the transfer forms to give effect to the Certificate of Confirmation dated 21. 12. 2017.

Each party to bear their own costs.

DATED AT BUNGOMA THIS 25TH DAY OF JUNE, 2021.

S.N. RIECHI

JUDGE