[2017] KEHC 1593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

MISC. CIVIL APP. NO. 22 OF 2015

JULIUS KIAMBATI M’MBURA..........................................APPLICANT

VERSUS

BERNARD KIRIMI THIRUNGA..................................1st RESPONDENT

THE LAND ADJ. SETTLMENT OFFICER,

TIGANI WEST DISTRICT.........................................2ND RESPONDENT

HON. ATTORNEY GENERAL..................................3RD RESPONDENT

RULING

BACKGROUND

There are two pending application in this matter. One is the application dated 17:04:15 (filed on 20:04:15 and the other is dated 16:09:15, both filed by intended appellant.

At the heart of this matter are the proceeding in PMCC NO. 197/14 at Tigania particularly the ruling delivered 07. 04. 15.

It has taken long to deal with those two application. Consequently, I deem it fit to deal with the two applications simultaneously.

Application of 17:04:15.

In this application, the intended appellant is praying for:-

a. That this Honourable Court be pleased to grant the Applicant /intended Appellant leave to file an appeal against the decision of the Principal Magistrate Tigania in Tigania PMCC NO. 197 OF 2004 dated 7/04/2015.

The grounds in support thereof are that:-

a) That leave is required to appeal in view of the provision of Order 7 Rule 1 under which the applicant’s statement of defence was struck out.

b) That the Applicant /Intended Appellant is aggrieved by the decision dated 7/04/2015 and further decision of 14/04/2015 which is curious.

Applicant has also sworn an affidavit of 17. 04. 15 where he states that:-

1) That he is the applicant herein well versed with the facts of this matter and therefore competent to make and swear this affidavit.

2) That on the 03:03:2015 Applicant’s counsel attended Court for hearing of an application by the 1st Respondent inter-parties. Annexed and marked “JKM 1” is a copy.

3) That the 1st Respondent’s Counsel raised a Preliminary Objection asking the Court to struck out defence from record together with my Replying Affidavit for late filing, an objection which was strenuously opposed by his counsel.

4) That the same was reserved for ruling on 07:04:2015.

5) That on 07:04:2015 the Ruling was delivered a consequence whereof Applicant’s defence dated 11th February, 2015 was struck out under Order 7 Rule 1. Annexed is a copy of the defence marked “JKM 2”.

6) That the ruling is hereto annexed and marked “JKM3”.

7) That Applicant’s Counsel did an oral application on the same day the Ruling was delivered for leave to appeal as provided by the law but the same was refused as he was asked by the Court to apply formally and serve the Respondent.

8) That Applicant’s Counsel quickly made a formal application on 09:04:2015. It was certified urgent and the same was ordered to be served to the Respondents for hearing inte-partes on 14:04:2015 Annexed and marked “JKM 4” is a copy of the application.

9) That the application was heard and the Court surprisingly ruled that Applicant do not require leave Annexed and Marked “JKM 5’ is a copy of Ruling.

10) That when he was filing the application for leave he noticed that the 1st Respondent had already moved Court the same day to enter Judgment on his account in default of Applicant’s defence.

11) That Applicant advised by his Counsel that leave to appeal is required the application having been struck out under Order 7 Rule 1 of the Civil Procedure Rules.

Grounds of opposition were filed on 09:06:15 by 1st Respondent who averred that:-

a. The application is incompetent as similar application was made in PMCC NO. 197 of 2014 and rejected.

On 09:07:15, the Court gave directions that Submissions be filed in respect of that application.

Application of 16:09:15

In this application, the intended appellant prays for:-

1. That this Honourable Court be pleased to stay the Proceedings in Tigania PMCC NO. 197 of 2014 pending the hearing interpartes of this application or further orders of the Court.

2. That this Honourable Court be pleased to stay proceedings in Tigania PMCC NO.197 of 2014 pending the hearing and determination of the main application herein and the intended appeal.

3. That costs be in this cause.

The grounds in support of this application are:-

1. That the case in Tigania being PMCC NO. 197 of 2014 has been fixed for hearing on 06:10:2015.

2. That the hearing of the suit in Tigania Law Courts shall greatly prejudice the application herein as the applicant seeks to be heard.

3. That it is in the interest of justice that this application is filed.

There is also a Supporting Affidavit of Applicant where he avers that:-

1) That Applicant has been sued in Tigania PMCC NO. 197 OF 2014. Annexed and marked “JKM1” is a copy.

2) That the matter in Tigania Law Court has been fixed for hearing on 06:10:2015. Annexed and marked “JKM 2” is a copy of the hearing Notice as served on his Advocate.

3) That before this Court there is pending an application dated 17:04:2015 wherein Applicant seek for leave to file an appeal against the decision of the Principal Magistrate dated 07:04:2015. Annexed and Marked “JKM 3” is a copy of the application.

4) That the hereto annexed decision of the Magistrate’s Court marked “JKM 4” effectively locked Applicant out of the case.

5) That the hearing in Tigania if allowed to take place shall greatly prejudice him and he shall be condemned unheard contrary to the rules of natural justice.

6) That wherefore he pray for stay of proceedings to enable him canvass his application before this Court which application has a direct hearing to the case in Tigania Law Courts.

7) That it shall not be in the interests of justice to have two parallel proceedings in Court.

On 22:09:2015, the Court granted prayer 2 in the application, allowing a stay of proceedings in the Tigania case until this application was heard and determined.

Grounds of objection were then filed on 19:10:15 by 1st Respondent where he avers as follows:-

1) The Applicant is not sincere in the application and it is made mala fides.

2) The Applicant has not complied with the previous orders/ directions of the Court issued on the 09:07:2015 as to the disposal of the application dated 17/04/2015.

3) The Application is an abuse of the Court process and is intended to delay the finalization of Tigania PMCC NO 197 of 2014.

4) The application is without merit.

On 12:10:2015, the Court had been informed that 2nd and 3rd Respondent would not be opposing this application.

Submissions of Applicant

Applicant avers that for the application of 17:04:15 their defence and Replying Affidavit had been struck out vide the lower Court’s Ruling of 11:02:15. The Applicant had then made formal application before the trial Court for leave to appeal and the Court had ruled that leave was not required to appeal and that defendant could appeal as a matter of right.

For the Application of 16:09:15 applicant avers that it is necessary to have a stay of the lower Court’s case so as not to have parallel set of proceedings. He also avers that if the Lower Court case proceeds, then the appeal process will be a futile exercise. He also contends that if the application is not allowed, it will be against the Rules of Natural justice and it will be against the overriding objective of the just determination of proceedings.

Submissions of the 1st Respondent

On the first application (for leave to appeal), 1st Respondent avers that under order 43(3) of Civil Procedure Rules, leave was not required and hence the application of 17:04:15 is unmerited.

For the application 16:09:15, 1st Respondent avers that staying the proceedings of the lower Court is a matter of Judicial discretion. It is contended that the Court should consider the prima faciemerits of the intended appeal. 1st Respondent avers that from the draft memorandum of appeal, chances of appeal succeeding are not feasible considering that there was delay in filing the present application.

Determination

I have considered the arguments raised here in along with the cited authorities. On whether Applicant should seek leave or not, I make reference to provision of order 43 Rule (1) of the CPR, where it is provided that:-

“An appeal shall lie as of right from the following orders and rules under the provision of Section 75 (1) (b) of the Act; order 2 (pleadings generally).

I am in agreement with the Magistrate’s ruling that under Order 43 of Civil Procedure rules, the applicant was entitled to proceed with the process of appeal as of right.

In case of Kenya Power cited by both applicant and 1st Respondent, there is emphasis on the Court’s consideration of the Pros and cons of granting an order (or not granting).

Applicant has availed authorities where it was held that an appeal was incompetent and was struck out for want of leave ; see Kenya commercial bank ltd. Vs. Tony Monase Esipeya civil appeal no. 105 of 1988andHenry Kipkirong vs. Pyramid Construction ltd &another Civil appeal no. 304/2014 Nairobi. In essence, applicant is holding on to the adage “better safe than sorry” and that is why he took a winding route in his quest for justice. He cannot be faulted for doing so.

I make reference to provisions of article 159-2, (d) that Justice shall be administered without undue regard to procedural technicalities”.

The Court therefore has a constitutional mandated to grant orders which ensure that substantive justice is achieved. In Halsbury Laws of England 4th edition vol. 11page 805, paragraph 1508,it is stated that; “the court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining….”

I note that the Lower Court case has now stalled. It is necessary to give the applicant an opportunity to present his appeal so that there can be a way forward in the lower court case.

In the circumstances, the Court will proceed to give directions regarding the application of 17:04:15.

On the application of stay (of 16:09:15), I note that there are orders of stay of proceedings issued on 22:09:15 (two years ago). It would be in the interest of justice for the stay order to be maintained.

Conclusion:

I proceed to give the final orders as follows:-

1) The Application of 17:04:17 is not merited, but Nevertheless, the Applicant is given 10 days within which he is to file and serve the Memorandum of Appeal.

2) The application of 16:09:15 is allowed.

3) Applicant is condemned to pay the costs in both applications.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 6TH DAY OF NOVEMBER, 2017 IN THE PRESENCE OF:-

CA:Janet

Miss Nyaga for Applicant present

Kiogora A. H/B for Murango Mwenda for Respondent present

B. Kimathi for 2nd and 3rd Respondent present

HON. L. N. MBUGUA

ELC JUDGE