[2023] KEHC 23253 (KLR)

Ochiel & another v Kilembwa & another (Suing on their Behalf and as Administrator of the Estate of the Late Simon Nzambu Kilembwa) (Civil Miscellaneous Application E017 of 2023) [2023] KEHC 23253 (KLR) (9 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23253 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Miscellaneous Application E017 of 2023

RK Limo, J

October 9, 2023

Between

John Okoth Ochiel

1st Applicant

Abel Mutua Mundu

2nd Applicant

and

Mukamba Kilembwa

1st Respondent

Philip Kilembwa Nzambu

2nd Respondent

Suing on their Behalf and as Administrator of the Estate of the Late Simon Nzambu Kilembwa

Ruling

1. Before this court is a Notice of Motion dated 12th April, 2023 brought by John Okoth Ochiel and Abel Mutua Mundu the 1st and 2nd applicants respectively who are seeking the following reliefs namely: -i.Spentii.That this Hon. Court be pleased to grant the applicants leave to file an appeal out of time against the Judgement of the Hon. M.K. Mwangi-Chief Magistrate –Mwingi in Mwingi CMCC No. E041 of 2021. iii.Spentiv.That there be a stay of execution of the aforementioned judgement and decree in Mwingi CMCC No. E041 of 2021 pending the hearing and determination of the intended appeal.v.That this Hon. Court be pleased to deem the draft Memorandum of Appeal annexed herein as duly filed and served upon payment of requisite court fees.vi.That costs of this application be provided for.

2. This application is grounded on the following grounds namely: -a.That judgement in Mwingi CMCC No. E041/21 was scheduled to be delivered on 21st September, 2022 when the trial Magistrate was said to be away on official duty and that the judgement was set to be delivered on notice.b.That on 7th October 2022, the Judgement in the said case was delivered without notice to the applicants.c.That the applicants are dissatisfied with the judgement and have instructed his lawyers to appeal against the whole judgement.d.That the time frame for filing an appeal lapsed on 7th November, 2022 and hence the need to extend time and stay the execution.e.That the delay in filing the appeal on time was due to the fact that judgment was delivered without notice to the applicants and delay by the advocates to provide a copy of the judgement in time to enable them review and issue instructions on appeal.f.That the applicant has a good and meritorious appeal with good chances of success.g.That the Respondent would suffer no prejudice should the court exercise its discretion to grant the applicants leave to appeal out of time.h.That unless leave is granted for the applicant to appeal out of time and a stay granted, the Respondent will proceed with the execution.i.That mistake of the advocate should not be visited on them.j.That this application has been made in pursuit of justice and without unreasonable delay.k.That the applicants are ready to abide by any conditions that this court may impose on them.

3. This application is supported by the affidavit of John Okoth Ochiel, the 1st applicant herein sworn on 12th April, 2023.

4. The deponent avers that he took out a comprehensive Insurance with APA Insurance Co. Ltd for his motor vehicle Registration No. KCB 687 which was involved in the accident on 28th July, 2019 which was the subject of the suit filed and the judgment upon which they now seek to appeal out of time.

5. That he knows that the firm of Archer and Wilcock Advocate. was instructed by the insurance company to conduct defence on their behalf during trial in Mwingi Cause No. E041 of 2021.

6. The Deponent further avers that judgement in the Lower Court was to be delivered on 21st September, 2022 when the Magistrate was away adding that it was later delivered without notice on 7th October, 2022. He has exhibited a copy of a notice from court administrator dated 12th September, 2022 indicative that Hon. M.K. Mwangi was not sitting on 19th to 23rd September 2022 and on11th to 14th October, 2022 because he would be away on official duties. The deponent has also exhibited a letter from NM & K Advocates dated 7th October, 2022 notifying his Counsel that Judgement was delivered on 7th October, 2022 and the details of the Judgement are also given in the said letter.

7. The applicants attribute the delay in filing the appeal on time to the reason that the judgement was delivered without notice to them.

8. He further acknowledges the fact that their initial application dated 13th January, 2023 seeking the same reliefs as sought herein was struck out on 13th February, 2023.

9. He further depones that on 6th April, 2023 the Respondent proceeded to execute by proclaiming his motor vehicle registration No. KCB 687X which asset he claims is the source of his livelihood and has exhibited a copy of the warrants and proclamation from M/s Milan Auctioneers whom he says are demanding a sum of Kshs. 2,986,735 to satisfy decree.

10. The applicants express fears that they may not recover the amount should the intended appeal succeed because they have no information about the respondent’s income.

11. They claim that the amount awarded by the trial court was excessive and they are optimistic about chances of succeeding on appeal.

12. They further claim that there was an error on the part of his advocate in the delay of filing an appeal though he has not stated what the error is but insists that the error should not be visited on him.

13. In their written submissions through M/s Archer & Wilcock Advocate, the applicants have reiterated the above grounds adding that their earlier application dated 13th January, 2023 was struck out for being incompetent because the supporting affidavit was found to have been sworn by a stranger in the proceedings.

14. The applicants contend that because their application was struck out, this application is not res judicata because in their view, the former application was not heard conclusively and to its finality. According to them, their earlier application was struck out and was not dismissed.

15. On the issue of leave to file an appeal out of time, the applicant contends that Section 79G gives this court discretion to extend time. They submit that discretion to extend time must be exercised within established principles of law and have cited the decision in the case of Omar Shurie versus Marian Rashe Yafar [2020]eKLR to support their contention. They submit that the above decision laid out factors to be considered which are: -i.Length of the delayii.Reasons for the delayiii.Chances of appeal succeeding if leave is granted.

16. On the length of the delay, the applicant concedes that the judgement from which they intend to appeal against was delivered on 7th October, 2022 and that the stipulated time for appeal lapsed on 7th November, 2022. They contend that they filed this application on 13th April, 2023 which in their estimation was 143 days late. They submit that what amounts to inordinate delay depend on circumstances of each case and have cited the decision in Utalii Transport Co. Ltd & 3 others versus NIC Bank Ltd and Another [2014] eKLR where the court held that inordinate delay should not be taken in its literal meaning but inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases. The applicant contends that in Daniel Kakuta Kavoi versus Tri-Clover Industries (9K) Limited [2021] eKLR a delay of 53 days was found not to be inordinate delay adding that similarly, in Agip(K) Limited versus Highlands Tyres Ltd. [2001] eKLR a delay of 8 months was held not to be inordinate. They submit that in view of prevailing circumstances their delay was not inordinate.They submit that they have demonstrated sufficient cause citing the provisions of Section 799G if the Civil Procedure Act.’’In respect to reasons for the delay, the applicant cites the provisions of Section 799 G that requires an applicant to show ‘‘good and sufficient cause for not filing appeal in time.’’

17. The applicants cite the lack of notice in respect to the date of delivery of judgement as their primary reason for the delay.

18. Secondly, they blame their advocates for failing to get or provide a copy of the judgment to their insurer and issue necessary instructions to appeal. The applicants have however, not given reasons for the failure by their advocates to send a copy of the judgment or demonstrate efforts made to get the same. They however, insist that their application is not afterthought.

19. In regard to chances of success in the intended appeal, the applicants contend that the award made was excessive considering the age of the deceased. They have however not stated how old the deceased was at the time of his demise. They also contend that they have issues with apportionment of liability which in their view, demonstrates that their intended appeal is an arguable one.

20. They rely on the decision of Vishra Stone Suppliers Company Limited Versus RSR Stone Ltd [2020] eKLR where the Court held that a party should be allowed to exercise his right of appeal which underpins his constitutional right to be heard.

21. The applicant contend that the Respondent will not suffer any prejudice if the applicant is granted the reliefs being sought in this application, adding that, on the contrary, the applicants would suffer greatly if the proclaimed motor vehicle being the 1st applicant’s tool of trade is sold. They urge this court not to give undue regard to technicalities but dispense substantive justice. In this regard, they rely on the decision of Telcom Kenya Limited versus John Ochanda and 996 Others [2016]eKLR.

22. In regard to stay of execution, the applicants contend that Order 42 Rule 6 gives this court unfettered discretion to grant a stay of execution pending appeal. They submit that they only need to show sufficient cause which they contend they have and have relied on the decision in the case of Antoine Ndiaye versus African Virtual University [2015] eKLR.

23. They submit that owing to the award of Kshs. 2,986,735 given to the Respondent, they stand to suffer substantial loss because they have reasonable apprehension that the respondent may not refund should the intended appeal succeed. They submit that the replying affidavit demonstrates that the Respondent has no known assets or source of income.

24. They submit that they are ready through their insurer to abide by any order in respect to security as stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules. They deny the Respondent’s contention that their application is frivolous.

25. The Respondents on the other hand have opposed this application through a notice of preliminary objection and a replying affidavit by Philip Kilemba Nzambu sworn on 24th April, 2023.

26. The Respondents main contention in this application is that it is res judicata in light of the decision of this in a similar application vide Kitui High Court Misc. Application No. E002/23 between the same parties.The Respondents contend that this application is an abuse of the Court process in view of the above.

27. They also contend that the 1st Applicant has not sought authorization from the 2nd applicant to swear the affidavit in support of this application on his behalf adding that the 1st applicant cannot seek Orders on behalf of the 2nd Respondent without his authority.

28. They also contend that this application is fatally defective because the applicants have not invoked the provisions of Order 40 Rule 4(2) of the Civil Procedure Rules adding that the applicant has sought to stay the execution of a judgment indefinitely which they term as improper and absurd.

29. The Respondent contend that this application is unsustainable and cite the decision in Heywood Ochieng Aseso versus Jackson Kimeu Mulinge and 2 others [2023] eKLR.

30. They aver that on merits the applicants have failed to meet the threshold for extension of stay execution as provided under Order 40 Rule 4(2). The provisions of Order 40 Rule 2(2) however relates to ex parte injunction which could be some inadvertence by the Respondents who ironically have insisted that parties must be bound by their own pleadings. The provisions of Order 42 Rule 6 of Civil Procedure Rules are the relevant to the provisions for stay of execution

31. The Respondents have cited a decision in the case of Nicholas Kiptoo Arap Korir Salat versus Independent Electoral and Boundaries Commission and 7 Others where the Court rendered itself on principles to be considered in extension of time. For clarity, extension of time is provided for under the provisions of Order 50 Rule 6 of Civil Procedure Rules which the applicants have duly invoked in their application now before court.

32. The Respondents contend that the applicants have failed to meet the threshold for extension of stay and have wrongly cited the provisions of Order 42 Rule 2 of Civil Procedure Rules which does not relate to extension of stay or time.

33. The Respondents insists that the Applicants were duly advised of the delivery of judgement on 12th October, 2022 and have exhibited a letter dated 7th October, 2022 advising the applicants advocates about the judgement delivered on 7th October, 2022. They submit that the applicants were advised on time about the judgement. They contend that the applicants have not demonstrated any efforts made to call for a copy of the judgement.

34. They contend that the applicants made no efforts to appeal but only filed this application when execution began.

35. They aver that the applicant’s earlier application was not struck out but dismissed and have exhibited the copy of the ruling of this court to buttress their contention.

36. They aver that they have a right to enjoy fruits of judgement and fault the applicants for presuming that he will be unable to refund the judgment sum should the intended appeal succeed.

37. They further aver that the applicants have not demonstrated what substantial loss they would suffer if stay is not granted.

38. In their written submissions dated 22nd May, 2023 filed through learned Counsel. M/s N.M. & K advocates, the respondents fault the applicants for failure to comply with directions given by this court on 11th May, 2023 that directed them to file and serve their submissions within 14 days. They contend that the applicants failed to comply with the directions and submit that the applicants have therefore come to this court with unclean hands. This court however, finds that the applicants filed their written submissions on 25th May 2023 which was a day late as they were to file their written submissions 14 days from 11th May 2023 which meant that they were to file by midnight of 24th May, 2023. When this matter came up on 31st May 2023, no issue was raised on the question of time by any party and therefore this court did not find it just to fault a party for being hours late to the deadline given.

39. This Court has however considered a preliminary issue raised by the respondents and that is the claim that this application is res judicata in light of this Court’s finding in Kitui High Court Civil Case Misc. Application No. E002 of 2023 which matter also involved the same parties herein.

40. I have perused through my ruling in the said matter which ruling is annexed to the replying affidavit of Philip Kilembwa Nzambu. It is quite apparent that the prayers sought in that earlier Misc. Application are replicated in this present application.

41. The applicant insists that the ruling of this court dated 13th April, 2023 struck out their application but did not dismiss it. Before I consider my earlier ruling it is material that this court considers the doctrine of res judicata as provided under Section 7 of the Civil Procedure Act.

42. Section 7 of the Civil Procedure Act bars this court from re-adjudicating over a matter it has fully adjudicated upon and tendered itself. The Section States;‘‘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 an issue has been subsequently raised and has been heard and finally decided by such court.’’

43. The above provision clearly shows that, for the doctrine/principle of res judicata to apply, the following principles apply;i.That an issue raised is directly or substantively similar to an issue previously raised and the issue has been fully adjudicated upon and finally decided.ii.That the court that determined the matter was competent to determine it.iii.The issue decided must have involved the same parties or parties under whom they litigated in the previous suit.iv.The determination should have been on the merits.

44. The doctrine of res judicata is meant to bring litigation to an end and avoid abuse of court process.

45. The question posed in this application is whether this application is res judicata.

46. SubstanceThere is no doubt that the substantive prayer upon which the other reliefs hinges on is leave to file appeal out of time. That prayer was fully canvassed in the previous application dated 13th January, 2023 and it was prayer (ii) in that application.

47. This Court in its ruling dated 13th February, 2023 in paragraphs 27 to 31 fully adjudicated upon the prayer for extension of time and in its final determination held as follows: -‘‘...............I find no merit in the extension of time and in the absence of extension of time there is no basis for stay of execution.’’

48. Now with the above finding the answer to the question as to whether this court rendered itself with finality in regard to extension of time is obviously in the affirmative.

49. This Court contrary to the applicants’ assertion in the above cited paragraphs clearly rendered itself on the merits about whether the applicant deserved the discretion of this court to extend time for them to file their appeal out of time.

50. This Court found no merit in extension of time for reasons clearly given in the cited paragraphs and if the applicants were aggrieved they could either appeal or apply for review if there was discovery of new matters not within their knowledge at the time of filing the previous application.

51. Having determined the substantive prayer with finality, this court cannot be called again to re-adjudicate over the same matter because this court is now functus officio. On that ground alone, this Court finds that this application dated 12th April, 2023 is bad in law. In light of the decision of this court dated 13th February, 2023, vide Kitui High Court Misc. No. E002 of 2023, the substantive relief sought isres judicata. The application is therefore, stuck out with costs to the respondents.

DATED, SIGNED AND DELIVERED AT KITUI THIS 9TH DAY OF OCTOBER, 2023. HON. JUSTICE R. LIMOJUDGE