[2019] KECA 518 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E.M. GITHINJI, H. OKWENGU & J. MOHAMMED, JJ.A)

CIVIL APPEAL (APPLICATION) NO. 4 OF 2017

BETWEEN

LUCAS CHAHAGA..................................................................................APPELLANT

AND

ALBERT W. WASIKE............................................................................RESPONDENT

(An appeal arising from the Ruling and Orders of the Environment and Land Court of Kenya

at Bungoma (Mukunya, J.) made on 10th November, 2016

in

ELC. No. 188 of 2013)

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RULING OF THE COURT

[1] Lucas Chahaga has made two applications both dated 16th April 2018. The first application is made in Civil Appeal No. 4 of 2017 where the respondent is Albert W. Wasike. Incidentally, the name used by the respondent in the Environment and Land Court is ALBERT W. MASIKA. It is the same name used by the respondent in the documents filed in Civil Appeal (Application) No. 4 of 2017. It seems that the applicant has misspelt the name of the respondent.

The second application is made in Civil Appeal No. 5 of 2017 where the respondent is Moses Kenbengwa Adisa. Both applications seek extension of time within which to file a Notice of appeal challenging the orders of the High Court at Bungoma (Mukunya, J) dated 21st July 2016 and leave to file a supplementary record of appeal. The two applications were heard, one immediately after the other. However, the respective counsel for the parties authorized the Court to deliver one consolidated ruling. This is therefore, a consolidated ruling in respect of the two applications.

[2] Albert W. Wasike filed Civil Suit No. 188 of 2013 in the Environment and Land Court, Bungoma against Lukas Chahaga (applicant herein) for specific performance of an agreement of sale of 2 acres of land out of land parcel No. Bungoma/Kamukunywa/875 (suit land) or in the alternative, refund of the purchase price. He averred in the plaint that on 30th December, 1993 the applicant agreed to sell to him 2 acres out of the suit land for Shs. 94,000/- which he paid but the applicant in breach of the agreement refused to transfer the land to him. The applicant in his statement of defence admitted the agreement of sale and the payment of Shs. 94,000/- but averred that his efforts to obtain the consent of the Land Control Board failed, hence the applicant was only entitled to the refund of the purchase price.

When the suit came for hearing on 21st July 2016, a consent judgment was entered by the respective counsel for the parties in terms that:

“1. Kshs. 1,000,000/- to be paid by the defendant in settlement of the claim.

2. Costs of the suit be assessed/taxed by the deputy registrar of the court.

3. Case be mentioned on 19th October 2016 for closing the court file.”

On 19th October 2016, the suit was adjourned for further mention on 10th November 2016.

[3] On 31st October 2016, the applicant filed a notice to act in person and on the same day filed a notice of motion seeking an order that the consent judgment entered on 21st July, 2016 be set aside on the main ground that his advocate did not consult him before the consent judgment was entered. The application was given a hearing date of 10th November 2016, the same day that the suit was fixed for a mention. When the matter was listed on 10th November 2016, the applicant informed the court that he did not agree with the consent judgment and that he has changed his mind. The court noted that there was a valid consent judgment and that there was no application to set aside the consent judgment. The court proceeded to mark the suit as finalized.

[4] On 18th November 2016, the applicant filed a notice of appeal against the order of 10th November 2016. On 23rd January 2017, the applicant’s advocate filed Civil Appeal No. 4 of 2017. The memorandum of appeal shows that the appeal is both against the orders made on 21st July 2016 and the ruling made on 10th November 2016.

[5] Similarly, sometime in 2013, Moses Kenbengwa Adisa filed Civil Suit No. 189 of 2013 in Bungoma Environment and Land Court against the applicant for specific performance of an agreement of sale dated 24th August 1990, of 2 acres out of land parcel No. Bungoma/Kamukunywa/875 for a consideration of Shs. 50,000 which he claimed to have paid. The applicant filed a statement of defence admitting the agreement and the receipt of Shs. 50,000/- but claimed that he was not the registered owner and that the plaintiff was only entitled to Kshs. 100,000/- as per the terms of the agreement. The suit came for hearing on 21st July 2016, when a consent judgment was entered for the plaintiff against the applicant for Shs. 1,000,000/- for the settlement of the claim. The suit was fixed for mention on 19th October, 2016 for closing the file. On that date, the mention was rescheduled to 10th November, 2016. Again, the applicant filed a notice to act in person on 31st October, 2016, and filed an application for setting aside the consent judgment on the same date. A hearing date of 10th November, 2016 was inserted on the application.

[6] On 10th November, 2016, the applicant informed the court that he disowned the consent judgment. The court made a note and observed that there was no application to set aside the consent judgment and marked the file as finalized on 18th November, 2016. The applicant filed a notice of appeal against the ruling of 10th November, 2016, and subsequently filed Civil Appeal No. 5 of 2017 on 23rd January, 2017.

[7] The two applications for extension of time are based on the same grounds; that the failure to file a notice of appeal in both suits against the consent judgment of 21st July 2016 was due to inadvertent mistake; that the omission was discovered as the applicant’s counsel was preparing for the hearing of the appeals scheduled for 18th April 2018. The application is opposed on grounds, inter alia, that the applicant is guilty of latches and inordinate delay; and that the application lacks merit and if allowed would occasion injustice.

[8] We have considered the two applications bearing in mind the principles governing the exercise of the Court’s discretion to extend time under Rule 4 of the Court of Appeal Rules. The applicant is required to show, inter alia, that the intended appeal is not frivolous; that there is no inordinate delay in filing the application and that the application, if granted, would not cause undue prejudice to the respective respondents.

[9] Section 67(2)of theCivil Procedures Act provides:

“No appeal shall lie from a decree passed by the court with the consent of the parties.”

The applicant intends to appeal against the consent judgment entered in both suits on 21st July, 2016. As no appeal lies from a consent judgment, such appeal would be frivolous. The applicant filed an application to set aside the consent judgment in both suits. It seems that the application in each suit has not been determined. The applicant does not seem to have brought to the attention of the court on 10th November, 2016 that there was a pending application for setting aside the consent judgment, as the court observed that no such application had been made. It is apparent that the applicant has a more efficacious remedy, that of prosecuting the pending applications in the Environment and Land Court.

[10] The consent judgments that the applicant intends to appeal against were entered on 21st July, 2016. Both appeals were against the ruling of 10th November, 2016, filed on 23rd January, 2017. The present applications to extend time were filed on 16th April, 2018. The appeals were filed by the applicant’s advocates and not by the applicant in person. Had the applicant’s advocates exercised due diligence, they could have noticed over the span of one and half years that a notice of appeal had not been filed against the consent judgment in both suits. We are not satisfied that the omission was due to inadvertent mistake.

[11] In the premises, the applications have no merit and are hereby dismissed with costs to the respective respondents.

Dated and Delivered Eldoret this 28th day of June, 2019.

E. M. GITHINJI

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JUDGE OF APPEAL

HANNAH OKWENGU

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR