[2022] KEHC 14753 (KLR)

SAM v KMM (Civil Appeal 211 of 2021) [2022] KEHC 14753 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14753 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 211 of 2021

JN Onyiego, J

November 4, 2022

Between

SAM

Applicant

and

KMM

Respondent

(Being an Appeal from the decision of the Kadhi’s Court at Mombasa, (Hon.Habib S.Vumbi) dated 12th August 2021 in Civil Suit Number E113 Of 2021)

Ruling

1. What’s before the court is a Notice of Motion application dated November 12, 2021seeking the following orders;a.That this honourable court pleased to extend the time within which the appellant shall file her Memorandum of Appeal and further be pleased to grant leave to file the Memorandum of Appeal out of time.b.That upon the grant of order no 1 above, the Memorandum of Appeal filed on November 9, 2021 be admitted into the court’s record and be deemed as properly filed.c.That the costs of this application be borne by the appellant/applicant.

2. The application is premised on the grounds therein and the supporting affidavit of the applicant sworn on November 12, 2021 wherein she stated that she got married to the respondent sometime on December 30, 2006 under Islamic Law out of which they were blessed with three children namely; IKMw,MKM,LKM.That due to irreconcilable differences she asked for Talak which the respondent did give her.

3. Subsequently, she filed a case at the Kadhi’s Court seeking confirmation of the divorce and custody and maintenance of the children. That she was advised by her advocate which she believes to be true that the issue of custody and maintenance of the children is distinct from that of divorce and the same should be have been filed in the children’s court which is the court with competent jurisdiction. That the matter proceeded and judgement delivered on August 12, 2021 by the principal Kadhi Hon Habib S Vumbi in her presence and subsequently issued with a copy of the same.

4. She averred that despite the judgement having been delivered in her presence she was not informed of her right to appeal and since she was acting in person she did not know the steps to take thereafter.

5. She further averred that being aggrieved by the decision of the Kadhi she went back to the Kadhi’s Court Registry where she was informed that the Kadhi’s decision was final and if she wished to take any further action she could engage the services of an advocate. That given her financial status she was unable to retain the services of an advocate and therefore she visited the department of children services to seek legal advice and that’s when she learnt of her right to appeal.

6. She stated that she was unable to retain the services of an advocates due to lack of funds until she was referred to her current advocate who after she explained herself agreed to take her case pro bono. She then instructed the advocates to appeal against part of the judgement but they had to first review the judgement, extract the decree and write to Kadhi’s Court for copies of the entire proceedings and then prepare and file the memorandum of appeal. That her advocates wrote to the executive officer on November 2, 2021, extracted a decree on November 4, 2021 and filed a memorandum of appeal on November 9, 2021.

7. She averred that failure to file memorandum of appeal in time was not deliberate or intended in any way to obstruct the course of justice or abuse the court process but on account of factors which were beyond her control. That the delay in seeking extension of time to file memorandum of appeal is not inordinate as the application was brought before this court at the earliest opportunity and that the respondent will suffer no prejudice if the application is allowed.

8. In response the respondent filed a replying affidavit sworn on March 14, 2021 and filed on March 22, 2022. He stated that the Kadhi’s Court made a merited finding based on the facts and evidence produced before it and it is unfair and dishonest of the applicant to deny the jurisdiction of the Kadhi’s Court whereas she is the one who invoked the same.

9. He further stated that the argument of the applicant not being able to file the appeal within time due to financial constraints is not founded in law and that it is baseless as the applicant did not file the same as a pauper. He termed the claim that counsel on record took up the matter on pro bono basis as a mere allegation which is not supported by any tangible evidence.

10. He further averred that; the applicant failed in laying basis for the court to exercise its discretion to enlarge time for filing of an appeal; the failure and delay in filing the appeal is inordinate; there is no justification to the same and; the applicant’s application is unmerited and an abuse of court process.

11. The application was by consent canvassed through oral submissions.

12. Ms Ongeso advocate for the applicant in her oral submissions submitted that the respondent’s replying affidavit did not have a jurat thus it should be struck out and expunged of record. Counsel relied on the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR where the court held that there was no affidavit on record due to the fact that the affidavit on record was not signed, commissioned nor dated. She further submitted that if the replying affidavit is struck out then the application be allowed as unopposed without prejudice to the respondent.

13. Counsel relied on the case of Evans Kiptoo v Reinhard Omwoyo Omwoyo [2021] eKLR on the principles a court should consider in issuance of orders for extension of time to file an appeal out of time and urged the court to allow the same. She further submitted that the delay was not inordinate and that the appeal has high chances of success as the orders issued by the Kadhi’s Court were null and void for lack of jurisdiction under Article 170(5) of the Constitution. Further, that the respondent will not suffer any prejudice but she will be prejudiced by being ordered to comply with orders that are null and void.

14. On the other hand, Mr Mkan advocate for the respondent submitted that the application herein is incompetent, made in bad faith and amounts to abuse of court process. He reiterated the respondent’s position in the respondent’s replying affidavit and submitted that this application is an afterthought and should not be entertained by the court. He further submitted that the failure to commission the affidavit was curable within the civil procedure.

15. In rejoinder, counsel for the applicant stated that the application is unopposed and respondent’s counsel submissions cannot be considered in the absence of a response.

16. Have considered the application, response therein and the rival submissions by both advocates. Issues that emerge for determination are:a.Whether the replying affidavit is fatally defective.b.Whether the orders sought should issue.

17. On whether the replying affidavit is fatally defective, counsel for the applicant submitted that the respondent’s replying affidavit did not have a jurat thus it should be struck out and expunged of record and the application be deemed unopposed. On the other hand, the respondent’s counsel submitted that the failure to commission the affidavit was curable within the civil procedure.

18. The particulars of a jurat or attestation clause in an affidavit are provided in Section 5 of the Oaths and Declarations Act which provides;“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

19. The court in the case of Joseph Mwawasi Katana and David Mwanjala vs Republic[2002] eKLR faced with a similar issue stated as follows;“I agree that the jurat of the replying affidavit offends the requirements of the jurat in an affidavit. Put simply, these are: (a) Must be signed by the deponent.(b)Must be completed and signed by the person before whom the affidavit was sworn whose name and qualification must be printed beneath his signature.(c)Contain full address of the person before whom the affidavit was sworn.The other issue raised is that the affidavit does not show by whom it was drawn (see sections 34 and 35 of the Advocates Act). Considering all the deficiencies in the affidavit, I am of the strong view that the same is bad in law and cannot stand. It is expunged from the record of the Court.”

20. I have considered the replying affidavit of the respondent. I have noted the same was signed and dated by his advocate who is not the deponent. Thus, it’s my view that the same does not meet the requirements of a jurat in an affidavit and it’s therefore bad in law, incurable and cannot stand. The same is accordingly expunged from the court record.

21. The effect of expunging the replying affidavit from the record is that the application is unopposed hence the submissions of counsel for the respondent is without basis and therefore not worth considering. However, as stated in the case of Sitelu Konchellah above, the mere fact that an application is not opposed does not mean that such application must automatically succeed.

22. On whether the orders sought should issue, the applicant herein seeks extension of time to file a memorandum of appeal out of time on the grounds that she was not aware of her right to appeal and that she could not afford legal fees to retain the services of an advocate.

23. The court in the case of Paul Njage Njeru v Karija K Mugambi [2021] eKLR in dealing with the extension of time stated,“Appeals from a subordinate Court to the High Court ought to be filed within thirty (30) days of the making of the decision sought to be challenged. Extension of time is a matter of discretion and the law gives this Court jurisdiction to extend time upon application. The law allows for such applications to be made even when the time for doing the act in question has already lapsed. Section 79 G of the Civil Procedure Act provides as follows: -79G.Time for filing appeals from subordinate courtsEvery 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: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.See also Order 50, Rule 6 of the Civil Procedure Rules, Section 95 of the Civil Procedure Act and Section 59 of the Interpretation and General Provisions Act.The discretion to extend time must be exercised within the established principles of the law and the factors to be considered when determining an application seeking leave to appeal out of time were discussed by the Court of Appeal in Omar Shurie Vs Marian Rashe Yafar (Civil Application No 107 of 2020) being: -i)the length of the delayii)the reason for the delayiii)the chances of the appeal succeeding if the application is grantediv)the degree of prejudice to the respondent if the application is granted”

24. From the above citation it’s clear that extension of time is a matter of discretion by the court which must be exercised within the principles of the law. The citation also lists 4 factors to be considered by a court in exercising its discretion to extend time.

25. I will discuss the 1st and 2nd factor together which are; the length of the delay and the reason for the delay. In this case the applicant has argued that the delay is not inordinate. She argued the reason for the delay was lack of knowledge on her right to appeal and lack of funds to raise legal fees and or retain the services of an advocate.

26. The judgement of the Kadhi’s Court in this case was delivered on August 12, 2021 whereas the memorandum of appeal and the application herein were filed on November 9, 2021 and November 12, 2021 respectively which is a delay of 3 months. I must note that no documentary evidence has been produced to prove the fact that the applicant’s counsel is representing her pro bono for lack of funds.

27. Whereas I acknowledge and appreciate the claim by the applicant that as a lay person she did not know of the appeal timelines, she was present when the judgment was delivered and had the opportunity to consult. Thus, it’s my view that the applicant’s claim on this two grounds is not tenable. Therefore, the length of the delay was inordinate and the reasons given for delay cannot stand. I am guided by the case of Paul Njage Njeru v Karija K Mugambi(supra) where the court stated;“The Court has also considered the other reason advanced that the Applicant was not able to raise legal fees and disbursements to lodge the appeal. The Court has taken note of the fact that no form of evidence either by way of correspondence or any other form was adduced to support this averment. While the Court is mindful of the fact that an individual’s financial ability is a matter within the special knowledge of the individual himself, the Court considers that the filing of a Memorandum of Appeal would not be so costly as to deprive even those acting for themselves of their right to access justice. As to the legal fees, the Court would have expected the Applicant’s Counsel, being the one that charged legal fees that the Applicant was apparently not able to raise, at the very least, to confirm this averment by way of filing an affidavit. That was equally not done.”

28. On the appeal having high chances of success, I have considered the memorandum of appeal filed on November 9, 2021 and it’s my view it does not raise triable or arguable issues as it challenges the jurisdiction of the Kadhi’s Court on custody and maintenance of children which jurisdiction she voluntarily subjected herself into. She cannot therefore claim that the kadhi’s court did not have jurisdiction yet she submitted to its jurisdiction. This is clearly a case of abuse of the court process.

29. Simply because she lost, she cannot turn back and criticise the same court she herself approached for orders she did not get. See Owners of Vessel “Lillian “s” V Caltex Oil(Kenya) Lmt(1989)e KLR where the court said that the issue of court’s jurisdiction should be raised at the earliest opportunity possible and a party who participates in proceedings to which the court had no jurisdiction to the end cannot be heard to complaint after the conclusion of the case.

30. On the degree of prejudice, the respondent will suffer unnecessary expense if the application is granted yet the appeal has no high chances of success. In my view, the application is frivolous and unmeritorious.

31. The upshot of the above is that the application dated November 12, 2021 is hereby disallowed hence dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 4TH DAY OF NOVEMBER, 2022. J.N.ONYIEGOJUDGE