[2023] KECA 1309 (KLR)

Okulula v Fichaka (Civil Application E044 of 2023) [2023] KECA 1309 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KECA 1309 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application E044 of 2023

M Ngugi, JA

October 27, 2023

Between

Henry Okato Okulula

Applicant

and

Sofia Shikuku Fichaka

Respondent

(Being an appeal arising from the ruling of the Honourable P. J. Otieno J, dated 14th November, 2022 at Kakamega in Succession cause No. 228 of 1986 Succession Cause 228 of 1986 )

Ruling

1. The applicant has filed the application dated April 3, 2023 under Rules 4 and 41 of the Court of Appeal Rules. He seeks in this application an extension of time to file a notice of appeal and record of appeal out of time from the ruling dated November 14, 2022 in Kakamega High Court Succession Cause No. 228 of 1986. He also prays that the costs of the application abide the outcome of the intended appeal.

2. The application is based on the grounds set out on the face of the application and is supported by an affidavit sworn by the applicant on April 3, 2023. The applicant contends in these grounds and avers in his affidavit that the time for filing an appeal has lapsed, but that the delay in filing the appeal was caused by the unavailability of the court file and the delay in tracing the said file.

3. The applicant further avers that the objector’s summons for revocation of grant was due for ruling on November 14, 2022. On that date, he attended court with his advocate, Ms. Aligula, and the objector in person but the matter did not appear in the Cause List before any of the High Courts and the court file could not be traced. The parties were advised by court staff to check for the court file on another date.

4. It is his averment further that when the court file was eventually traced in February 2023, it had a ruling dated 14th November 2022 delivered in the absence of both parties. His counsel immediately applied for a certified copy of the proceedings and ruling as evidenced by a copy of the letter in that regard, the receipt in respect thereof, and the proceedings respectively marked HOO1a, b and c.

5. The applicant avers that he is aggrieved by the decision and wishes to appeal against it, but the time stipulated in law for lodging a notice of appeal and a record of appeal has already lapsed. It is his deposition that the respondent will not be prejudiced in the event that the application is allowed as she will have an opportunity to respond to the intended appeal.

6. In the submissions in support of the application dated July 7, 2023, the applicant contends that the delay in filing his notice and record of appeal was not due to his fault but as a result of the mistake on the part of the court. He further avers that he has lived on land parcel E/Wanga/Mung’ang’a/155 which constitutes the estate of the deceased with the knowledge of the objector and if he is denied the land, he will be rendered landless, destitute and will suffer irreparable loss, damage, hardship and embarrassment. It is his case that his intended appeal raises serious issues of law and public importance, namely the issue of res judicata and the respondent will not suffer any prejudice as she can also attest to the error on the part of the court.

7. I have perused the record of the Court and have not found a response or submissions by the respondent. I note, however, that in the hearing notice dated Thursday July 6 2023 sent by email at 8. 46 a.m. to the applicant’s counsel Daniel Akwala on his email dakwalacounsel@gmail.com, the applicant’s counsel was required to serve notice on the respondent’s advocate. There is no evidence of service on the record.

8. In the circumstances, the applicant not having served the respondent in this matter, I believe it would not serve the interests of justice to proceed with the application without having accorded the respondent an opportunity to be heard on the issue. I accordingly direct that the application be served on the respondent and the application for extension of time be listed thereafter with evidence of service on the respondent.

DATED AND DELIVERED AT KISUMU THIS 27TH DAY OF OCTOBER, 2023. MUMBI NGUGI……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR