[2022] KEHC 13672 (KLR)

Munyendo v Makokha & 3 others (Miscellaneous Application E011 of 2022) [2022] KEHC 13672 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13672 (KLR)

Republic of Kenya

In the High Court at Kakamega

Miscellaneous Application E011 of 2022

WM Musyoka, J

October 7, 2022

Between

Johnstone Munyendo

Applicant

and

Monica Makokha

1st Respondent

Joseph Makokha

2nd Respondent

Prisca Anyonje

3rd Respondent

Wilberforce Welemba

4th Respondent

Ruling

1. For determination is the motion dated January 24, 2022. It essentially seeks leave to file appeal out of time and stay of proceedings in Kakamega CMCCC No. E18 of 2021. The same is premised on the grounds on the face of it, and on the facts deposed in the affidavit of the applicant, Johnstone Munyendo, sworn on January 24, 2022.

2. The background is that the suit in Kakamega CMCCC No. E18 of 2021 seeks compensation for defamation. When the matter came up, on October 27, 2021, the presiding magistrate indicated that the same touched on land matters, and she had no jurisdiction over land matters, and she thereby rescued herself from the matter, and referred it to the Chief Magistrate for further directions. It is the order of October 27, 2021 that the applicant is aggrieved by, and would like to appeal against. He says that he was unable to file appeal as he fell ill on December 28, 2021, and he was not able to instruct an advocate until January 12, 2021.

3. Upon being served, the respondents filed grounds of opposition, on January 28, 2022, of even date. They essentially aver that there is no automatic right of appeal against the order of October 27, 2021, for the same lies with leave of court, to be sought orally at the delivery of the ruling or within 14 days thereafter. It is averred that the delay has not been explained, for the period between October 27, 2021and December 28, 2021, when the applicant allegedly fell ill. It is averred that the there was no basis for stay of the proceedings and of the ruling delivered onOctober 27, 2021.

4. Directions were given on February 8, 2022, for canvassing of the application, dated January 24, 2022, by way of written submissions. I only see written submissions by the applicant, filed herein on March 1, 2022, and which are undated. An order was made on March 1, 2022 for the trial court file to be availed, and I note that the same has since been availed.

5. There is really only one issue for me to determine, and that is whether I should grant leave to the applicant to file an appeal against the ruling of October 27, 2021, and whether, upon granting that leave, the appeal should be filed out of time.

6. The impugned order was made on October 27, 2021. The application was filed on January 25, 2022, inviting me to grant the leave sought. The applicant explains that he fell ill on December 28, 2021and that is why he was not able to move the court earlier. He does not explain why he did not act between October 28, 2021and December 28, 2021. The ruling was delivered on October 27, 2021, in the presence ofadvocates for both parties. The record is silent on whether or not leave was sought, then, orally for filing appeal. The matter was subsequently mentioned on October 27, 2021and November 17, 2021before the Chief Magistrate. The advocate for the applicant was present on both occasions.

7. The order made on October 27, 2021was not among those listed on Order 43 rule 1 of Civil Procedure Rules, and should fall under Order 43 rule 2 of the Civil Procedure Rule, where leave is required for the purpose of appeal. Leave to appeal, according to Order 43 rule 3 should have been sought orally on October 27, 2021or in writing thereafter within 14 days. The applicant did not take any step onOctober 27, 2021, nor within 14 days thereafter. He did not explain why. The explanation that he gives, in his affidavit, relates to a period after expiry of the 14 days. In his affidavit, he appears to blame his advocates, for the failure to act within the 14 days, yet he does not state that the advocates had any such instructions, and that instructions were not given until January 2022.

8. I am not persuaded, therefore, that good grounds exist for me to exercise discretion in favour of the applicant. Consequently, I hereby dismiss the motion ,datedJanuary 24, 2022. There shall be no order as to costs. Let the trial court records be returned to the relevant registry. The temporary orders made on January 24, 2022 are hereby discharged.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7THDAY OF OCTOBER,2022. WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Osuchi, instructed by the Osuchi & Company, Advocates for the appellant.Mr. Rene, instructed by Rene & Hans & Company, Advocates for the respondents