[2024] KEHC 3384 (KLR)

Republic v County Government of Kirinyaga; Muiruri & another (Exparte Applicants); Kabui (Interested Party) (Miscellaneous Civil Application 43 of 2018) [2024] KEHC 3384 (KLR) (8 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3384 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Miscellaneous Civil Application 43 of 2018

RM Mwongo, J

April 8, 2024

Between

Republic

Republic

and

County Government of Kirinyaga

Respondent

and

Jane Wanjiku Muiruri

Exparte Applicant

Francis Kariuki Magati

Exparte Applicant

and

Anthony Mbuthi Kabui

Interested Party

Ruling

Application and Preliminary Objection 1. The 1st Ex parte Applicant filed an Originating summons dated 29th August 2020. It seeks that the court grant leave to and allow the 1st Ex parte Applicant to file an appeal against the Respondent out of time. The decision sought to be appealed is a ruling in the matter dated 29th May 2020 by Gitari, J.

2. The Interested party filed a Preliminary Objection dated 3rd November 2020 to the aforesaid application on the following grounds:1. That the application is defective in form and offends the mandatory provisions of the law as per Order 19 Rule 4 & 7 of the Civil Procedure Rules 2010. 2.That the applicant and the deponent are two distinct persons, the applicant being Jane Wanjiku Muiruri and the deponent being Okendi John Lewis.3. The application is brought to court by one person and the supporting affidavit is sworn by a different person hence making it an application brought in by strangers.

3. On the direction of the court, parties filed written submissions to the Preliminary Objection.

Interested Party’s Submissions 4. The Interested Party asserts that the application is not properly before the court; and that if offends Order 19 Rules 4 & 7.

5. Secondly, the Interested Party asserts that the application is incurably defective in that the applicant and deponent purporting to make the application are twoseparate individuals, meaning that one of them is an impostor. On this ground, he argues the application should fail.

6. Thirdly, the Interested Party argues that the reason advanced for filing the appeal out of time is not genuine as the date and time of delivery had been notified to the parties. He argues that the parties had consented to the judgment being sent to them electronically.

The 1st Ex Parte Application’s Submissions 7. The 1st Ex Parte Applicant puts forth three issues in her submissions, namely: - Whether or not the application is properly before the court.

- Whether the application is incurably defective because the applicant and deponent are separate persons.

- Whether the reasons for appealing out of time are sufficient.

8. On whether the application is properly before the court, the applicant relies on Section 3A Civil Procedure Act that “nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as are necessary for the ends of justice. She also relied on Section 79G of the Civil Procedure Act which gives the court power to admit an appeal out of time. On this point counsel relies on Asma Ali Mohamed v Fatime Mwinyi Juma Court of Appeal 75/2014 where the court held that a party wishing to appeal out of time must first file the appeal then seek leave to admit it out of time.

9. On the allegedly incurable defectiveness of the application because the applicant and deponent are separate, the applicant cites Order 19 rule 3 (1) Civil Procedure Rules that an:“Affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove”In this case, the deponent was the counsel for the 1st ex parte applicant in the primary suit, a fact that is not in dispute.

10. As to whether the reasons for seeking to file the appeal out of time are sufficient the applicant argues as follows:First, that in reliance on the case of Muringa Company Limited v Archdiocese of Nairobi Registered Trustees, Civil Application 190 of 2019, there are varied reasons for extension of time such as length of delay, possible prejudice that each party stands to suffer, conduct of the parties; the need to balance the interests of a party who has a decision in his favour against those of a party who has a constitutionally underpinned right of appeal; the need to afford opportunity to fully agitate the dispute against the need to ensure timely dispute resolution.

11. The interested Party argues that the intended appeal is arguable and has high chances of success. Further Section 79G Civil Procedure Act provides for admission of an appeal out of time if the appellant satisfies the court that there was good reason for not filing on time.

Issues for Determination 12. The issues for determination herein are as follows:1)Whether the Preliminary Objection meets the threshold to be described as a Preliminary Objection.2)Whether the application is incurably by defective.

Whether the Preliminary Objection is properly a Preliminary Objection. 13. A preliminary objection is as described in the timeless holding in the Court of Appeal in Mukhisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd. [1969] EA 696 as follows:“a preliminary objection is the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. [Per Newbold, P]“So far as I am aware, a preliminary objection consits of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer to the dispute to arbitration”. [Per Law JA].

14. In the present case, the third ground raised by the interested party is that the reasons for filing the appeal out of time are not genuine fall apart of the definition of a preliminary objection. Non-genuine reasons for filing for extension of time necessarily invoke the court’s exercise of judicial discretion. In that sense, the court exercises its discretion to determine the sufficiency of the reasons given for extension of time. This limb of the objection therefore fails to fit the decscription of a preliminary point.

Whether the Application is incurably defective and not properly before the court. 15. It was asserted by the Interested Party that the application offends Order 19 Rules 4 & 7. Rule 4 merely requires the deponent to state his description and particulars. Here the deponent is Okendi John Lewis. He describes himself as the counsel for the 1st Ex Parte Applicant. I see nothing here to raise concern.

16. Order 19 Rule 7 Civil Procedure Rules provides:“The court may receive any affidavit sworn for the purposes being used in any suit not withstanding any defect by mis-description of the parties or otherwise in the title or other irregularity in form thereof or any technicality”. (Emphasis added).

17. In this case, the Affidavit was sworn by counsel to explain the circumstances under which the delay in filing the appeal arose. Counsel cannot be impugned. In any event Rule 7 gives a broad range of factors that may excuse defects or wants of form. The court is granted broad discretion to allow affidavits that are defective for mis-description or parties or title or other irregularity in form.

18. This means that the court can exercise discretion in allowing or not allowing an affidavit that is wanting in one way of another. As such the objector’s point here is not a preliminary objection, though it may form a ground of opposition. Accordingly, the objection fails on that point also.

19. The final objection of the Interested Party was that the applicant was different from the deponent of the application. I see nothing in this argument that could possibly invoke a preliminary objection, and no clarity is contained in the submissions. I understood the interested party to be saying that an applicant is not allowed to make an application if the person who swears his or her supporting affidavit is not the applicant himself or herself. On this, no law or authorities were cited in support.

20. The applicant’s application is made under Order 37 Rule 6 Civil Procedure Rules, Section 27 Limitation of Actions Act and Sections 1A & B and Section 3A of the Civil Procedure Act.Section 37 Rule 6 provides that:1. An application under Section 27 of the Limitation of Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit.2. Any such application made after the filing of a suit shall be made ex parte in that suit.”

21. There is no limitation as to the nature of the applicant or affidavit that can or should be filed under Order 37 rule 6. The Interested Party did not attack the reliance on this Order or rule. In any event it is clear that an application should be supported by affidavit. As already noted, Order 19 rule 7 grants the court broad discretion to “receive any affidavit worn for purposes of being used in any suit notwithstanding any defect…………”

Conclusions and Disposition 22. Even if it were to be accepted that there were serious technical defects in the affidavit of the applicant, Article 159 (2) (d) provides for justice to be administered without undue regard to technicalities. In Karanja Kabage v Josepk Kiuna Kariambegu Nganga & 2 Others [2013] eKLR it was held:“This objective is an echo of Article 159 (2) (d) of the Constitution of Kenya 2010 that the court shall be guided by the principles that preserve the interests of justice, that justice shall be administered without undue regard to technicalities, and the purpose and principles of this Constitution shall be protected and promoted”.”

23. Ultimately, the three limbs raised by the Interested Party in its Preliminary Objection all fail and are dismissed herein.

24. Accordingly, the preliminary objection fails in its entirely and is hereby dismissed with costs to the 1st Ex Parte Applicant.

25. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 8TH DAY OF APRIL, 2024____________________________R MWONGOJUDGEDelivered in the presence of:1. No representation for Republic/Respondent2. No representation for County Government/Respondent3. Onkendi for Ex Parte Applicants4. Murigu for Interested Party5. Murage Court Assistant.