[2022] KEHC 15366 (KLR)

Kesuka v Otieno (Suing as the personal representative of the estate of Eugene Odawa Otieno-Deceased) (Civil Appeal 489 of 2018) [2022] KEHC 15366 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15366 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 489 of 2018

JK Sergon, J

November 11, 2022

Between

Lemaiyan Francis Ole Kesuka

Appellant

and

David Dishon Otieno

Respondent

Suing as the personal representative of the estate of Eugene Odawa Otieno-Deceased

Ruling

1. This ruling is premised on the Notice of Motion brought by the respondent/applicant (“the applicant”) herein dated May 17, 2022 and supported by the grounds laid out on its face and the facts stated in the affidavit of the advocate Angela C. Cherono. The following are the orders sought therein:i.That an order do issue setting aside the ex parte orders issued on 18th February, 2022 by Honourable Lady Justice D.O. Chepkwony.ii.That an order do issue striking out from the record herein:a.The record of appeal dated March 4, 2020 and filed on March 9, 2020; andb.The memorandum of appeal dated March 4, 2020. iii.That the appeal herein be marked as overtaken by events.iv.That the appellant to bear the costs of the application and appeal.

2. The abovementioned advocate further swore a supplementary affidavit in support of the averments made in her supporting affidavit on July 20, 2022.

3. To oppose the Motion, the appellant/respondent (“the respondent”) herein swore a replying affidavit on August 8, 2022, to which advocate Angela C. Cherono rejoined with a further affidavit she swore on August 26, 2022.

4. At the hearing of the instant Motion, the parties were directed to file and exchange written submissions.

5. I have considered the grounds presented on the face of the Motion as well as the affidavits in support of and in opposition thereto. I have also considered the rival written submissions on record.

6. It is clear that the orders sought in the Motion are two (2)-fold in nature.

7. The first order concerns itself with whether the record of appeal and the memorandum of appeal dated March 4, 2020 ought to be struck out from the record on the basis that the appeal has been overtaken by events.

8. On the part of the applicant, it is stated and submitted that the memorandum of appeal dated October 15, 2018 filed by the respondent is in relation to the ruling delivered by the trial court on September 26, 2018 and which ruling was later followed by a judgment delivered on December 20, 2018 in favour of the applicant and against the respondent, thus rendering the appeal overtaken by events.

9. According to the applicant, the abovementioned memorandum of appeal was never served upon him.

10. It is also stated and submitted by the applicant that the respondent thereafter proceeded to file the application dated February 20, 2019 before the High Court-Civil Division vide High Court Misc. Application No. 180 of 2019 where he sought leave of the court to lodge an appeal against the aforesaid judgment out of time, and for an order of a stay of execution pending appeal.

11. The applicant states and submits that the High Court eventually dismissed the abovementioned application for want of prosecution on March 16, 2022 and hence no leave was granted to the applicant to file an appeal against the trial court’s judgment, and yet the applicant subsequently proceeded to file the memorandum of appeal dated March 4, 2020 against the judgment, constituting part of the record of appeal of like date.

12. For all the foregoing reasons, the applicant urges this court to strike out the record of appeal and the memorandum of appeal dated March 4, 2020 for being improperly on record.

13. In response, the respondent states and argues that the record of appeal and memorandum of appeal mentioned hereinabove were properly served upon the applicant and that the present appeal has no bearing on the orders made in High Court Misc. Application No. 180 of 2019.

14. The respondent further states and argues that the appeal raises triable issues which ought to be considered on merit and hence it would not be in the interest of justice to lock him out, going further on to submit that the instant Motion lacks merit and consequently ought to be dismissed.

15. Upon my study of the record, it is apparent that the memorandum of appeal dated October 15, 2018 filed in the present appeal, lies against the ruling delivered by the trial court on September 26, 2018.

16. Upon my further study of the record, it is also apparent that judgment was subsequently delivered by the trial court on the date mentioned by the applicant, thereby supporting the averments made by the applicant that the appeal in relation to the abovementioned memorandum of appeal has since been overtaken by events.

17. Moreover, the record indicates that two (2) separate memoranda of appeals are on record in the matter, one of which relates to the abovementioned ruling; while the other relates to the trial court judgment. It therefore remains unclear whether the respondent intends to challenge the trial court ruling or the final judgment.

18. Suffice it to state that the record further supports the averments made by the applicant that the respondent’s application seeking leave of the court to file the appeal against the judgment was dismissed for want of prosecution and there is nothing to indicate that the dismissal order has been set aside.

19. In view of all the foregoing circumstances, I am satisfied that the record of appeal and the memorandum of appeal dated March 4, 2020 which are in relation to the trial court judgment are improperly on record and therefore ought to be struck out therefrom.

20. The second order sought is for the setting aside of the orders made by the court on February 18, 2022.

21. On his part, the applicant states and submits that in view of the foregoing circumstances, sufficient grounds for setting aside have been established.

22. In retort, the respondent states and submits that the applicant has not met the threshold for review and/or setting aside of the orders in question.

23. Upon my perusal of the record, I note that the above-referenced ex parte orders made by the court are to the effect that the appeal be admitted to hearing and be canvassed through written submissions.

24. However, it is also apparent from the record that at the time of making the abovementioned orders, it is more plausible than not that the court had not been made aware as to the pending application seeking leave of the court to lodge the appeal against the trial court judgment out of time, and which application was eventually dismissed for want of prosecution, as earlier mentioned.

25. In view of the foregoing circumstances and upon my above finding on the appeal, I am satisfied that it would be necessary for this court to set aside the orders made on February 18, 2022.

26. Consequently, I allow the Notice of Motion dated May 17, 2022 giving rise to issuance of the following orders:i.The record of appeal dated March 4, 2020 and filed on March 9, 2020; and the memorandum of appeal dated March 4, 2020 be and are hereby struck out from the record.ii.The memorandum of appeal dated October 15, 2018 is hereby marked as overtaken by events.iii.The ex parte orders issued on February 18, 2022 by Honourable Lady Justice D.O. Chepkwony be and are hereby set aside.iv.The respondent/applicant shall have the costs of the Motion and the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. …………………………J. K. SERGONJUDGEIn the presence of:-………………………………… for the Appellant/Respondent………………………………… for the Respondent/Applicant