[2023] KEELC 18642 (KLR)

Mwangi v Mokaya (Environment and Land Appeal 13 of 2023) [2023] KEELC 18642 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18642 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment and Land Appeal 13 of 2023

FO Nyagaka, J

July 6, 2023

Between

Raphael Waiganjo Mwangi

Plaintiff

and

Dominic Ogeto Mokaya

Defendant

Ruling

1. The Appellant filed an Application dated 02/05/2023. He did so on 04/05/2023. He brought it under Sections 1(A) and 1(B) (sic), 3A and 79G of the Civil Procedure Act, Order 42 Rule 6(1) and (2), and Order 50 Rule 6 of the Civil Procedure Rules, 2010. As it can be noted from the Application it was filed in Appeal No. 13 of 2023 yet one of the prayers was for the said appeal to be deemed as duly filed. He prayed for:1. …spent2. …spent3. That this Honourable Court be pleased to order that there be a stay of execution of the judgment of the lower court in KitaleCMCC Environment and Land Court Case No. 82 of 2020 delivered on 28/11/2022 by Hon. S. K. Mutai SPM pending the hearing and determination of an appeal against the said judgment.4. That the Appellant be granted leave to file an appeal out of time against the judgment of the lower court in Kitale CMCC Environment and Land Court Case No. 82 of 2020 delivered on 28/11/2022 by Hon. S. K. Mutai SPM and the Memorandum of Appeal annexed hereto be deemed as duly and properly filed within time.5. That costs of this Application be costs in the cause.6. Any other orders that meet the ends of justice.

2. The Application was based on the grounds that judgment was delivered in the lower court in Kitale Chief Magistrate ELC No. 82 of 2020 on 28/11/2022; the appellant was aggrieved by it and thereafter the Applicant made an application for certified typed proceedings and exhibits for purposes of appeal; he was unable to craft (sic) grounds of appeal since he was unrepresented; he was informed on the 05/04/2023 that the proceedings were ready for collection; a certificate of delay was prepared on 17/04/2023; the Appellant had since filed a Memorandum of Appeal against the entire judgment of the lower Court; time for the appeal had run out; the delay was excusable; there were sufficient reasons for the court to exercise discretion and grant leave to file the Memorandum of Appeal out of time; the Respondent was likely to execute the judgment any time; the appeal had reasonable chances of success and may be rendered nugatory of the execution was carried out; substantial loss would result of stay of execution was not granted; the Appellant was willing to abide by terms of security as may be imposed by the Court; no prejudice would be suffered by the Respondent if the orders were granted; there was no inordinate delay in bringing the instant application and the interests of justice favoured the grant of the application.

3. The Application was supported by the Affidavit of the Applicant, one Raphael Waiganjo Mwangi, sworn on 02/05/2023. It repeated, albeit in deposition form, all the contents of the grounds. But in addition to that he annexed to it a copy of the judgment and marked it as RWM-1; a copy of his letter dated 28/11/2022 and a payment receipt both which he marked as RWM-2(a) and (b); a letter dated 31/03/2023 by his current Advocates inquiring of the delay and he marked it as RWM-3; a letter dated 05/04/2023 from the Court Administrator that the proceedings were ready and the proceedings. He marked it as RWM-4(a) and (b); a certificate of delay dated 17/04/2023 and he marked it as RWM-5, and a draft Memorandum of Appeal and payment receipt both of which he marked as RWM6(a) and (b). Thereafter, he deponed that the Application was made in good faith, and that he had been in occupation of the suit property for more than 15 years, developed it and called it home and buried his parents thereon.

4. The Application was opposed very strongly. The Respondent did so through the Replying Affidavit sworn by learned counsel on 07/05/2023. He deponed that the Application was frivolous, vexatious and intended to delay the finalization of the case and frustrate the Respondent who is sickly, suffering from throat cancer.

5. He deponed further that before filing the instant appeal the Appellant had filed Kitale ELC Appeal No. 17 of 2022 and an application dated 31/10/2022 under certificate of urgency. That this Court delivered a comprehensive ruling on it on 17/11/2022. He reproduced the relevant paragraph of the Ruling in which this Court found and directed that “for avoidance of delay in this Appeal and to ensure that the process of this Court is not subjected to further abuse, it is hereby directed that the record of appeal herein is filed within 30 days of delivery of the judgment of the lower Court, and both the lower court and this one be placed before this Court for mention on 24/01/2023 for further directions. A copy of this Ruling be served on the Deputy Registrar of this Court within 7 days of delivery.” He annexed and marked as Ex-NGS1 a copy of the Ruling

6. He deponed further that the said appeal came up for mention on 24/01/2023, 08/02/2023 and 08/03/2023 to confirm compliance of the orders, but the Applicant had done nothing in it. He deponed further that on 08/03/2023 the Court directed that the appeal be mentioned on 15/03/2023 for showing cause why it should not be dismissed for want of compliance.

7. He swore that on 09/03/2023 he caused the service of the mention Notice dated 08/03/2023 on Ms. Teti & Company Advocates who represented the Appellant. He deponed that neither Mr. Teti Advocate nor the Appellant did attended Court on 15/03/2023 both the virtual session and the physical session when the Appeal had been placed aside to wait for anyone to attend later in case he missed the virtual session. That as a resulted in the dismissal of the appeal with costs to the Respondent.

8. He deponed further that instead of the Appellant applying to set aside the orders of 15/03/2023 in Kitale ELCA No. 17 of 2022 he opted to file an appeal from the judgment of the trial Court. He termed the appeal as an abuse of the process of the Court.

9. He deponed that on 28/11/2022 the trial Court found the Appellant to be a trespasser on the suit lands, namely, Trans Nzoia/Sitatunga/313, 314, 315, 316 and 317 but to date he does not want to move out of them as ordered by the Court. That he had been given thirty (30) days to do so.

10. His further deposition was that on 13/03/2023 the trial Court directed that the Applicant was in contempt of Court and ordered that he be arrested and be detained in prison for a term of 30 days. The deponent annexed and marked as EX-NGS 3 a copy of the orders of the Court. He urged the Court to direct the Applicant to purge the contempt before being given audience.

11. He deponed that the Applicant had not been on the land for over 15 years. That instead the Applicant unlawfully buried his later mother on the land after she died on 31/10/2012. That his actions were carried out despite there being court decree, which was issued on 29/02/2012. He deponed that the Applicant’s late father was buried in Nyandarua where he lived since 1989.

12. He deponed further that a dead body (sic) has no value and therefore cannot base an excuse of refusing to vacate land and obey court orders.

13. He swore that the Applicant had not exhausted the remedy available to him under Order 42 Rule 6(1) of the Civil Procedure Rules before moving this Court for stay of execution hence the Application was an abuse of the process of the Court. He urged the Court not to grant audience to the Applicant who was fond of disobeying court orders.

14. He deponed further that although the Applicant had obtained a certificate of delay he had not informed the Court why he failed to promptly move this Court and why he chose to file another appeal rather than the previous one. He urged the Court to direct that the Applicant relocates to Trans Nzoia/Sitatunga/242 where he claimed ownership. He swore that the Respondent had been in the Court corridors for over 20 years against the Applicant and his mother and obtained judgments against them but had never enjoyed the fruits of the judgements. He deponed that the Applicant was suffering from throat cancer and was admitted in Moi Teaching and Referral Hospital and would be greatly prejudiced if the orders were granted. He deponed that the Applicant wished to settle his family on the land before he dies from the said throat cancer ailment.

Submissions 15. The Court directed the parties to dispose of the Application through written submissions. The Applicant filed his dated 12/05/2023 on 17/05/2023. He gave four issues for determination:1. Whether the appellant has exercised the remedy available in Order 42 Rule 6(1) (sic) before moving to this Court for stay of execution.2. Whether the prayer for stay of execution is merited3. Whether the prayer for leave to appeal out of time is merited.4. Whether the filing of Appeal No. 17 of 2022 bars the appellant from filing Appeal No. 13 of 2023.

16. About whether the Appellant had exhausted the remedy in Order 42 Rule 6(1) of the Civil Procedure Rules before moving this Court for stay of execution, the Appellant first quoted the Rule 6 of the Order. He underlined part of Sub-rule 1 where it reads as follows, “… and whether the application for such a stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider…”

17. He submitted that he did not skip the step of applying for stay of execution in the trial court as he made an oral application on 28/11/2022 when the judgment was delivered. He relied on the case of Raphael Waiganjo Mwangi v. Dominic Ogeto, ELC Appeal No. 17 of 2022 where the court found that the Applicant had not shown that he moved the trail court for stay of proceedings and the prayer granted or refused. He distinguished the instant case from the former following the prayer made on 28/11/2022 in which the trial court granted a stay of execution for 30 days.

18. He submitted that the stay of execution was granted before he moved this court. Lastly, on the point he argued that Order 42 Rule 6(1) did not specify the nature of application for stay of execution to be made hence it did not rule out informal applications. He then observed that even when the step was skipped the honourable judge proceeded to hear the merits of the application.

19. On whether the prayer for stay of execution was merited he submitted that Order 42 Rule 6(2) gives three conditions to be fulfilled. These were whether substantial loss may result if the order is not made; the application is made without undue delay; and security for the due performance of the decree is given. He submitted that in the circumstances the court should balance the interests of the parties so as not to unnecessarily bar the successful party from enjoying the fruits of his judgment and the appellant’s position should the application be not granted. He submitted that between 28/11/2022 and 02/05/2023 the delay is not inordinate.

20. About loss, he submitted that having been on the land for over 15 years, buried his parents therein and having nowhere to move to is substantial loss that may occur if the orders are not granted. He relied on the case of Peter Nakupang Lowar v Nauti Lowar (2022) eKLR where the learned judge held that since the judgment debtor was in occupation he would suffer substantial loss if eviction was permitted before hearing of the appeal. On security, he submitted that he was willing to abide by any terms the Court would impose.

21. On whether the leave to appeal was merited the Applicant submitted that Section 79G and 95 of the Civil Procedure Act provide for grant of leave to appeal out if time. He stated that since the reason for his inability to appeal in time was due to inability “to craft grounds” of appeal as he was unrepresented, and delay in obtaining proceedings, judgment and exhibits, there was good reason to grant the prayer: the explanation was adequate. He relied on the Court of Appeal decision of Thuita Mwangi v Kenya Airways [2003] eKLR.

22. Regarding whether the filing of Appeal No. 17 of 2022 barred the filing of the instant appeal, he stated that it could not since that one was against a ruling while the instant one was against the entire judgment hence it was not res judicata.

23. The Respondent submitted that the instant application was a duplicate of the one dated 31/10/2022 filed in Kitale ELCA Appeal No. 17 of 2022. He repeated that in ELCA No. 2022 the Applicant was ordered to file an Appeal within 30 days of the delivery of judgment on 28/11/2022 but he did not. He submitted that the appeal herein was a replica of Kitale ELCA No. 17 of 2022 and that instead of the Applicant applying to set aside the orders in that appeal he chose to file another appeal. He stated that in Kitale ELCA No. 17 of 2022 and the instant appeal, the parties were the same and the judgment being appealed from was the same.

24. He submitted how the Applicant’s mother who died on 29/02/2012 had been found a trespasser and ordered to be evicted yet the Applicant decided to bury her on the land. He stated that the Respondent who had obtained a decree against the mother of the Applicant was the same one against whom the instant prayers are made, and that he was duly represented by Ms. Teti and Company Advocates in the lower court hence he cannot plead ignorance.

Issues, Analysis and Determination 25. I have considered the application before me, the facts as pleaded by the parties, the law - both case law and statutory - and the rival submissions by the parties. The issues that commend themselves to me for determination are:a)Whether the instant application is res judicatab)Whether, if the answer to the above is negative, the instant application is merited and what orders to issuec.Who to bear the costs herein

26. In regard to the first issue, the question that this Court has to answer is: how related are the applications dated 31/10/2022 and the instant one so as the instant one to amount to being res judicata? The issue of res judicata is not a difficult one to determine. Section 7 of the Civil Procedure Act provides that“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

27. The elements of res judicata are therefore that the:a.issue being tried the second time was previously tried and determinedb.issue being tried was the same, directly or substantially in issue as in the former proceedingc.court that tried it had competent jurisdictiond.determination was on merits and not on a technicality hence conclusive on the issuee.parties in the former proceeding were the same or litigated therein under the same title.

28. In Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 Others[2014] eKLR the Court of Appeal stated as follows:“To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.”

29. Thus, is the instant application res judicata? The Respondent submitted that it was a duplicate of the one dated 31/10/2022. From the annexture marked as Ex-NG1 in the Replying Affidavit of Nyakundi George Stephen sworn on 07/05/2023 the prayers in the former application were, (3) a stay of proceedings in Kitale CMC Land Case No. 82 of 2020, between the parties as herein. In the instant application, the prayer are, 1. a stay of execution of the judgment of the trial court, 2. leave to appeal against the judgment of the trial court and a prayer for deeming the memorandum of appeal filed herein as duly and properly filed within time. It does not draw a long analysis to show that the issues in the two applications are totally different. Therefore, this Court will not dwell on the issue further. Section 7 of the Civil procedure Act has not been breached by the instant application.

b) Whether, if the answer to the above is negative, the instant application is merited and what orders to issue 30. Having found in the negative in regard to the first issue herein, this Court proceeds to consider the merits of the instant application. The Applicant based the instant application on a weighty reason: that he did not file his appeal in time because he was unrepresented. The Respondent deponed otherwise and annexed a copy of the Ruling of this Court but did not annex the proceedings in relation to Kitale ELC Appeal No. 17 of 2022 which he deponed to was dismissed for non-compliance, particularly when learned counsel for the Respondent deponed that on 09/03/2023 he served the mention notice dated 08/03/2023 on Ms. Teti & Company Advocates who did not appear in Court on 15/03/2023. The Court was left to wonder why learned counsel would serve another learned counsel to appear in Court on behalf of a litigant while he had no business in the matter and the litigant was unrepresented.

31. With these extreme divergent representations of the facts and contentions the Court had to peruse the record of the said Appeal to ascertain the correct position. From the record of that previous file it is clear that the Appellant herein filed in person the Memorandum of Appeal on 28/10/2023. He also made an application to stay the proceedings of the trial Court through an application he drew in person on 31/10/2022 and filed it on the same date. The application sought to stay the proceedings of the trial Court, which essentially were a judgment was due for delivery in the matter on 28/11/2022.

32. The Appellant appointed Ms. Teti and Company Advocates to Act for him in the Appeal. The said law firm came on record on behalf of the Appellant on 02/11/2022 through a Notice of Appointment of Advocates. It filed submissions on behalf of the Appellant and prosecuted the Application for stay of proceedings. This Court delivered the Ruling therein on 17/11/2022 before the Judgment date would reach. The copy of the Ruling was the one annexed to the Replying Affidavit in the instant application and marked as EX-NGS-1.

33. The record of the lower court shows further that the law firm of Ms. Teti & Company continued to represent the Appellant by Mr. Teti Advocate attending Court on 24/01/2023 and 08/02/2023 but not on 08/03/2023. That was the material date when the Respondent’s Advocate served the mention notice dated 08/03/2023 for the mention of 15/03/2023 when the Appeal was dismissed.

34. I have also carefully examined the typed proceedings of the trial Court, which the Applicant annexed to the supporting affidavit in the instant application and marked as RWM 4(b). Of relevance were the dates prior to the delivery of judgment on 28/11/2022. Starting with the 16/05/2022, Mr. Teti Advocate who represented him then was the same Advocate representing the Applicant in the Appeal. On 12/09/2022 Mr. Wekhuyi Advocate held brief for Mr. Teti and took a further hearing date by consent to 26/09/2022. On 17/10/2022 when the suit came up in court for Defence hearing, Mr. Teti Advocate appeared and at 11. 00 am presented an application which was struck out and the court ordered Defendant to proceed. The record is silent as to the immediate step. But by noon of that date the Plaintiff had appointed another Advocate by name Mr. Kimani to take over the representation from Ms. Teti & Co. Advocates. He argued that he had just been appointed and wished to have another date. The Court allowed the adjournment to 24/10/2022. Learned counsel Mr. Kimani argued on that later date that representation was an issue and he could not proceed. The Court failed to find merit in the application and rejected the adjournment. The Defendant then gave evidence and closed his Defence. Judgment was set for 28/11/2022.

35. It was the delivery of the Judgment made on 28/11/2022 that the Appellant sought to stay in Appeal No. 17 of 2022 and the Ruling on the application for stay of that step delivered on 17/11/2022 and is now marked as EX-NG1. As is clear, and I find it to be so, from the proceedings in the lower Court, and even in Kitale ELCA No. 17 of 2022, that the Appellant was duly represented by the law firm of Ms. Teti & Co. Advocates up to 11/10/2022 when the law firm of Ms. Jason Kimani & Co. Advocates filed a Notice of change of Advocates. From then on to the time the Applicant wrote a letter, in person, dated 28/11/2022 and filed on 5/12/2022, there was neither Notice of Change of Advocates or Notice to Act in Person or, in terms of Order 9 Rule 9 of the Civil Procedure Rules, an Application or consent to act in person after the delivery of the judgment impugned.

36. Therefore, regarding the issue of lack of representation and inability “to craft” grounds of appeal, the Applicant herein is engaging the Court in a mind game of his untruths hoping that the Court shall not read it well and see the abuse of its process taking place. May the Applicant better be sure that this Court is wiser and clever than him in that regard. He cannot argue that he was unrepresented all along when he did not act in person at all, and even when, way after the delivery of judgment as ordered in the Ruling of 17/11/2022 in Kitale ELCA No. 17 of 2022, in attending Court in the said appeal following directions of the Court to confirm the filing of the appeal within 30 days he was represented by the law firm of Ms. Teti and Company Advocates as observed above. To the extent that the Applicant has attempted to mislead the court about true representation, he has robbed himself, and he can only sit back to rue and reflect of a squandered opportunity, the chance to enjoy the discretion of the Court in his favour. Every litigant must bear in mind that he who comes to equity must come with clean hands, and lies do not consist cleanliness rather they soil. Short of that equity cannot assist him.

37. However, before this Court pens off, it is worthy considering the whether or not the prayer for stay of execution is merited. In my humble view this depends on whether or not there is a competent appeal before me. The reason is that one cannot justifiably put a cart before a horse and expect the trip to be safe. In simple terms it is said that one ought to put first things first. This court has to, therefore, consider the prayer for deeming the Memorandum of Appeal filed herein duly and properly filed first.

38. The applicant filed the instant appeal against a judgment of the trial Court delivered on 28/11/2022 in Kitale CMC Land Case No. 82 of 2020. He filed the Memorandum of Appeal on 26/04/2023. Thus, the Appeal was filed 149 days after the delivery of the judgment.

39. Section 79G of the Civil Procedure Act provides that:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.”

40. A calculation of the days consisting of the period within which the appeal from the judgment should have been filed leads to the conclusion that it ended on 21/01/2023 which was a Saturday, and it being a day off work, the next working date therefore was 23/01/2023. This is because, the provision as read with Order 50 Rule 4 of the Civil Procedure Rules, 2010 which deals with to computation of time, the period extended to that date because time stopped running on the 20/12/2022 and began running again on 14/01/2023. The provision is that:“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:”

41. Therefore, the Applicant filed the Appeal 93 days days after the expiry of time. The delay of 93 days required an explanation to be given, to the satisfaction of the Court, especially given the fact that the Applicant had been given clear timelines in Kitale ELCA No. 17 of 2022 to comply with. He gave the explanation that as a layman he did not know how to “craft” (understood to mean, formulate) grounds of appeal, also he did not have the proceedings and judgment. The argument that the applicant was a lay person or unrepresented has been rejected. This Court has found that indeed the applicant was represented throughout the proceedings in the lower court up to this date. He needed to give a better explanation than that, and the one of delay of proceedings and judgment does not merit either because he did not need to obtain them before filing a memorandum of appeal, particularly given that he was present in court on the date of delivery of the judgment.

42. In any event, in regard to being unrepresented as alleged, ignorance of the law is not a defence to any person for failure to obey it. I am not prepared to agree with the Applicant that for reason being unrepresented he would take his time and act outside of the law or do as he pleased so that he would move the court for extension of time, pleading a disability of sorts such as he mooted. To do so would open a pandoras box to all sorts of lame intentional and lazy excuses by persons who would take advantage of such a window to plead lack of representation in order to circumvent the law. Each person must remember that everyone cuts a cloth according to his/her size. In terms of court processes, when one fails to or decides not to instruct legal counsel to represent him/her he ought to know, understand and act according to the procedures and substance of the law as would of one who is ably represented.

43. Turning to the appeal herein, it was filed without leave of the Court. Upon filing is when the Applicant brought the instant application to have the Memorandum of Appeal to be deemed duly and properly filed within time. In essence what the Applicant asks this Court to do is to legitimize an otherwise strange document: he desires of this Court to breathe life into a dead document. This Court does not have jurisdiction of such a nature. The proper position in law is that a pleading filed without leave of Court is a nullity and must remain to be so.

44. After considering and quoting with approval two Ugandan decisions, the Court of Appeal of Kenya, in Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 13 others [2019] eKLR, held that “[The] common thread from the decisions cited above is that where leave of court is required, any pleading filed without leave is a nullity and liable to be struck out.” The authorities were the one of Samuel Mayanja v Uganda Revenue Authority, HCT - 00 - CC - MC - 0017 of 2005 (unreported) where the trial judge stated inter alia that:“Where the Applicant wants to file a further affidavit, he ought in my view, to seek the leave of the Court; otherwise the proceedings may turn simply into unregulated game of ‘ping pong’. As the affidavit was filed without leave of the Court, and it was objected to by the Respondent, I shall not have regard to the same.”

45. And the one of Ariho Emmanuel & another v Centenary Rural Development Bank Limited & 2 others, Uganda HCCC No. 14 of 2016, where also the trial judge expressed as follows:“The Amended pleadings were without leave of Court filed on the 10th/06/2016 which is clearly beyond the 14 days allowed under the Rule. The Amended Plaint and Chamber Summons are thus incorrectly on the Court record and are hereby struck off the record as against the 1st and 2nd Defendants.”

46. The Applicant in the instant matter filed the appeal herein in contravention of Section 79G of the Civil Procedure Act, at the proviso thereof. The proviso is to the effect that, “Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

47. It is not trivial for the Applicant to have submitted that Section 79G of Civil Procedure Act permits for leave of Court to extend time for the filing of an appeal out of time. However, he ought not to have filed the appeal herein without leave of the Court being sought first. The step he took was in contravention of the law. The Appeal herein is therefore incompetent and a nullity, when looked in light of the authorities referred to above. This Court cannot deem a nullity to be duly and properly filed. Thus, Prayer No. 4 of the instant application fails.

48. Since Prayer No. 4 of the Application has failed, this Court has nothing to base its determination on the merits or otherwise of Prayer No. 3 of the application. It thus also fails.

49. The upshot is that the Application dated 2/05/2023 fails in entirety and is hereby dismissed with costs to the Respondent. In essence it means that the Appeal herein is hereby struck out with costs to the Respondent.

50. Orders accordingly.

Ruling dated, signed and delivered at Kitale via Electronic Mail this 6th day of July, 2023. HON. DR.IUR FRED NYAGAKAJUDGE, ELC KITALE