[2022] KEHC 194 (KLR)

Matuu High School v Kitema (Miscellaneous Application E105 of 2021) [2022] KEHC 194 (KLR) (15 March 2022) (Ruling)

Neutral citation: [2022] KEHC 194 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E105 of 2021

MW Muigai, J

March 15, 2022

Between

Matuu High School

Applicant

and

Florence Syomiti Kitema (Suing as the Legal Representative of the Estate of Gideon Kilonzo Musyimi)

Respondent

Ruling

1. Vide Application dated the 30th of June 2021 under Section 3A,79G and 95 of the Civil Procedure Act , Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 1 and 3 of theCivil Procedure Rules seeking the following orders, THAT;a.Spent.b.This Honourable Court be pleased to extend time and grant leave to the Applicant to lodge a memorandum of appeal out of time against the judgment and decree entered against the Applicant by Honourable E.W. Wambugu, Senior Resident Magistrate in Kithimani CMCC No. 350 of 2018 delivered in 4th March 2021. c.Spentd.This Honourable Court be pleased to stay execution of judgement and decree in Kithimani CMCC NO 350 of 2018 pending hearing and determination of the intended appeal.e.Spent.f.Spentg.The Auctioneers do tax their Bill to scale,h.This Honourable Court be pleased to issue and other orders that it may deem fit, just and expedient in the interest of justicei.The costs of this Application be in the cause.

2. The Application is supported by the affidavit of Elizabeth Wanjiru, Advocate dated 30th June 2021 in which she contended that she had been instructed by the insurer of the Applicant to swear the affidavit. She deposed that a judgement was delivered against the Applicant on 4th of March 2021 awarding the Respondent Kshs 2,721,564 plus costs and interest and she informed the Applicant who after consultation gave her instructions to appeal by which time the time for filing an Appeal had lapsed. She deposed that the Respondent had began the execution process and that Applicant has proper grounds for appeal. She contended that the Respondent may not be able to pay the decretal sum if the Appeal succeeds and that the insurer was willing to furnish the court with a Bank Guarantee form DTB Bank and that the appeal is arguable and raises pertinent points of law and fact. She opined that the delay was not so inordinate and inexcusable.

Replying Affidavit 3. The Respondent filed a Replying affidavit dated 6th July 2021 in which she deposed that the Application was frivolous, vexatious and an abuse of the court process and time. Further, that the application was fatally defective as it was sworn by a an advocate who was not a party to the suit thus violating Order 19 rule (1) and (2) of the Civil Procedure Rules, 2010 and should thus be struck out. She contended that the deponent of the supporting Affidavit was a stranger to her as she had never litigated a matter against her. She opined that the allegations raised therein were untrue as in the event of a successful Appeal, she would be able to pay the decretal sum being an employee of the Teachers Service Commission working at Kalumu Primary School. She stated that the application was an afterthought an abuse of the court process as judgment was entered on 4th March 2021 and they ought not to have waited for the auctioneers to carry out a lawful procedure. She deposed that execution does not amount to substantial loss under Order 42 Rule 6.

4. In addition, she he deposed that Applicant should deposit half the amount being Kshs 1,559,945/- in a joint interest earning account pending hearing and determination of the Appeal and the other half be released to him. He opposed the bank guarantee as she contended that it is only valid for 12 months from 30th November 2021 by which time the Appeal will not have been concluded. He deposed that the limb of furnishing security was not fulfilled. He deposed that the appeal did not raise any grounds and was filed to frustrate his efforts of reaping the fruits of the judgement.

5. Directions were taken in 27th of July 2021 that the application be canvassed by way of written submissions. The Applicant filed submissions on 14th October 2021 while the Respondent filed hers on 29th September 2021.

Applicant’s Submissions 6. The Applicant while asking the court to exercise its discretion under Sections 3A, 79G and 95 of the Civil Procedure Act and while citing the case of Esther Wamaitha Njihia & 2 others vs Safaricom Limited [2014] eKLR that he alleged discussed the principles governing the exercise of the court discretion submitted that the court should exercise its discretion to admit the Appeal that has been filed out of time due to an inadvertent mistake and striking out of the Appeal would occasion him injustice and cause him unnecessary hardship. Further, that the Appeal was filed late due to the fact that the Advocates for the Applicants received the instructions late and this was a good and sufficient reason.

7. The Applicant counsel admitted that the delay, confusion and mistakes that led to filing of the Appeal out of time without leave of the court were occasioned purely through the administrative and inadvertent mistakes were her mistake which should not be visited upon her deserving client. Reliance was placed on the case of Lucy Bosire vs Kehancha Div Land Dispute Tribunal & 2 others [2013] eKLR, Paul Asin t/a Asin Supermarket vs Peter Mukembi [2013] eKLRand Edney Adaka Ismail vs Equity Bank Limited [2014] eKLR.

8. Counsel also submitted that the Appeal has high chances of success as demonstrated in the grounds set out in the draft Memorandum of Appeal. Further, that the Respondent had not shown what prejudice would be occasioned if the Appeal is admitted and without an affidavit of means, the Respondents financial status is still unknown .Counsel cited the cases of Edward Kamau & Another vs Hannah Mukui Gichuki & Another [2015] eKLR, Recoda Freight & Logistic Limited vs Elishana Angote Okeyo [2015] eKLR,Kenya Orient Insurance Co Limited vs Mohamed Dulo Alias Moh’d Omar Dima & 2 Others[2013] eKLR and Tabro Transporters Limited vs Absalom Dova Lumbasi [2012]eKLR.

9. As regards security, counsel submitted that the Applicant was willing to provide reasonable security as the court may deem fit.

Respondent’s Submissions 10. The Respondent reiterated the contents of the replying affidavit and submitted that the Application violated Order 19 Rule 3(1) as the advocate who swore the affidavit was not a party to the suit and had descended to the arena of litigants exposing him to cross examination.

11. While making reference to Order 42 Rule 6, she submitted that the requirements for stay of execution had not been satisfied. She opined that the Applicant had not demonstrated how the Appeal would be rendered nugatory. Further, that the Application had been filed 4 months after delivery of judgement and no evidence had been given to show that instructions were dispatched and the reasons for delay have not been explained. As regard the security, she submitted that there was no indication that the bank guarantee would be renewed and asked the court to direct that half of the decretal sum be deposited in a joint interest earning account of the advocates representing the parties. She submitted that she had in the lower court demonstrated that the deceased left behind two children who solely relied on him.

Analysis And Determination 12. I have considered the Notice of Motion Application, the Response thereto and the submissions of the parties and I find the following to be the issues for determination;a.Whether the Application was fatally defective.b.Whether the Applicant is entitled leave to file the Appeal out of time.c.Whether the Applicant should be granted stay of execution pending filing of his Appeal.d.Who should bear the costs of the Application?

13. On the first issue, the Respondent contends that the Application violated Order 19 Rule 3(1) and (2) as the advocate who swore the affidavit was not a party to the suit and had descended to the arena of litigants exposing him to cross examination.

14. Order 19 Rule 2 of the Civil Procedure Rules, 2010 provides that;1. Upon any application, evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent.

2. Such attendance shall be in court, unless the deponent is exempted from personal appearance in court, or the Court otherwise directs.

15. Order 19 Rule 3 of the Civil Procedure Rules 2010,on matter to which affidavits shall be confined provides that;1. Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.

2. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

16. Filing of Affidavits was discussed in the Haslbury’s Laws of England, 3rd Edition, paragraph 845 where it was stated that :-“Affidavits filed in the High Court must deal only with facts which a witness can prove of his own knowledge, except that in interlocutory proceedings or with leave, statements as to a deponent’s information or belief are admitted, provided the services and grounds thereof are stated….. However, under Rule 9 of the Advocates (practice) Rules, 1966, Advocates are not permitted to swear affidavits in contentious matters."

17. Rule 8 of the Advocates (practice) Rules, 1966 provides that:-“No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear”Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears.

18. In the case of International Community of Women Living With HIV Registered Trustees v Non-Governmental Organizations Co-ordination Board & 2 others; Teresia Otieno (Proposed Interested Party) [2019] eKLR the court observed that;It has time and again, been established principle of law, that Advocates should not enter into the arena of dispute by swearing affidavits on contentious matters of facts, as by doing so an Advocate exposes himself as a potential witness for cross-examination in a case he is handling, merely as an agent, and in which practice is not only embarrassing but highly irregular.15. In Magnolia PVT Limited vs Synermed Pharmaceuticals (K) Ltd (2018) eKLR, court dealing with similar issue states as follows:-“Whereas there is nothing barring an advocate from swearing an affidavit in appropriate cases, where the matters deposed to are agreed or on purely legal positions, advocates should refrain from the temptation of being the avenue through which disputed facts are proclaimed. The rationale for the said principle is to insulate the advocate, an officer of the court, from the vagaries of litigation which, on occasions may be very unpleasant. By swearing an affidavit on such issues an advocate subjects himself to the process of cross-examination thus removing him from his role of legal counsel to that of a witness, a scenario which should be avoided like plague. In my view, however innocent an averment may be, counsel should desist from the temptation to be the pipe stem through which such an averment is transmitted.”

19. The advocate has sworn an affidavit deposing that the “Applicant is apprehensive that if the Respondent is paid he may deal with the same in a manner prejudicial to the Applicant and if the intended appeal is successful, he might not be able to recover the same from the Plaintiff/Respondent.” How can counsel prove this in the event of cross-examination? Was the Applicant unavailable to give his own testimony?

20. The advocate further avers that the insurer intends to provide a bank guarantee in her capacity as an advocate for the insurer. There has been no indication that the said Applicant is not available in the circumstances that hindered filing of affidavit. In the circumstances the Court cannot conclusively determine the issue of delay in filing of the Appeal.

21. I find that the affidavit filed by the advocate dated 30th June 2021 is defective and is struck off to the extent that it raises some contentious matters.

Disposition 22. In the end, I issue the following orders;a. The Application dated 30th of June 2021 is dismissed with costs to the Respondent.It so ordered.

RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15TH DAY OF MARCH, 2022. M.W MUIGAIJUDGE