[2023] KECA 779 (KLR)

Temo & 6 others v Abdalla & another (Civil Application E005 of 2019) [2023] KECA 779 (KLR) (23 June 2023) (Ruling)

Neutral citation: [2023] KECA 779 (KLR)

Republic of Kenya

In the Court of Appeal at Mombasa

Civil Application E005 of 2019

SG Kairu, P Nyamweya & GV Odunga, JJA

June 23, 2023

Between

Bahati Temo

1st Applicant

William Mjape

2nd Applicant

Stephen Kahindi Mwanzani

3rd Applicant

Charles Charo

4th Applicant

Johnson Koya

5th Applicant

Kesi Mjape

6th Applicant

Robert Lugo

7th Applicant

and

Swafiya Abdalla

1st Respondent

Fatuma Swaleh

2nd Respondent

(Being a reference application arising from a decision by Hon Justice Kantai dated 28th May 2019 extending time to file appeal from the ruling and order of Hon Justice C. Yano delivered on the 11th day of April 2018 in Mombasa ELC Case No 155 of 1993 Environment & Land Case 155 of 1993 )

Ruling

1. In a ruling dated May 28, 2019, having heard the Notice of Motion February 18, 2018, that sought extension of time to lodge and serve a Notice of Appeal from the ruling of Yano, J delivered on April 11, 2018 in Mombasa HCCC No. 155 of 1993, the Learned Single Judge of this Court (Kantai, JA) granted the said application and directed the Applicants to file the Notice of Appeal within 10 days and serve the said Notice within three days of filing thereof. He further directed that the Record of Appeal be filed within 30 days of the date of the delivery of the ruling. The costs of the Motion were to abide the intended appeal.

2. The Respondents herein being aggrieved by the said decision preferred a reference dated May 28, 2019 to the full bench as they are entitled to pursuant to rule 57 of the Court of Appeal Rules, 2022. We heard the reference vide the Court’s virtual platform on 27th February, 2023 during which Learned Counsel Mr Tamini Lewa appeared for the 1st, 2nd 6th and 7th Applicants while Mr S. M. Kimani appeared for the Respondents. Both counsels relied on their written submissions which they highlighted before us.

3. In this reference it is contended that M/s Thamini Lewa of Lewa and Associates, Advocates were not the Applicants’ advocates before the court of first instance but had been appointed to act for the Applicants in Misc. Application No. 55 of 2018 in which a stay of execution was sought, an application that had been filed by Robert Lugo in person for himself and on behalf of the other applicants and which application was dismissed on February 14, 2019. According to the Respondents at the time of the filing of the instant application there was a Notice of Appeal in existence filed by the said Robert Lugo. It was further disclosed that following the striking out of the Notice of Appeal in Mombasa Civil Application No 82 of 2018, Civil Appeal No. 105 of 2018 was similarly struck out. According to the Respondents, the Notice of Appeal in the stay application could not be the basis of Mr Lewa’s appearance underrule 23 of the Court’s Rules either in the struck out application or in the subsequent applications.

4. The issue that has been posed before us for determination is whether subsequent to the striking out of a Notice of Appeal, the losing party can move the Court through an advocate without the said advocate filing a notice of appointment contemporaneously with the fresh application. It is the Respondents’ view that the Notice of Motion the subject of this reference was not founded on any Notice of Appeal. According to the Respondents, a party who has acted in person in the court below must formally appoint an advocate whose notice must be filed on the bed of the trial Court file or with the intended Motion before the Court of Appeal. It was therefore submitted that in allowing the application the Learned Single Judge erred. In support of this line of submission, the Respondents cited Trade Bank Limited & Another vs. L Z Engineering Construction Limited [1985-98] 1 EA 317.

5. While appreciating that in Nyeri Court of Appeal Civil Application No. 99 of 2018, this Court held that there was no need under rule 23 of the Rules of this Court for a newly appointed advocate to file a Notice of Appointment or Notice of Change, it was submitted that the circumstances of the instant case are distinguishable. According to the Respondents, since not all parties were represented by advocates before the lower court, it was an error for the Learned Single Judge to hold that the Notice of Appointment of Advocates in Civil Application No. 55 of 2018was sufficient

6. It was further submitted that the intended appeal is not arguable. According to the Respondents even if the orders sought in the intended appeal are granted, as long as the original decree remain undisturbed, the success of the appeal is unlikely to achieve the desired results. Therefore, an order allowing theapplicants to appeal would be otiose. It was submitted that based on the evidence before the trial court, the issue of limitation was frivolous and ought not to have been the basis of allowing the application the subject of this reference.

7. During his oral address, Mr Kimani submitted that since the leave to file the notice and record of appeal was granted to the 7 applicants as “corporate” applicants, the applicants were not severable and hence in the subsequent proceedings, Counsel could not purport to be acting for only some of the applicants. It was further stressed that since there was no appeal against the main judgement, challenge cannot be taken to the assessment of compensation and leave to appeal against the same ought not to have been granted.

8. In opposing the reference, it was submitted by Mr Lewa on behalf of the Applicants that there is no proper reference before the Court because whereas the letter dated May 28, 2019bears the court’s stamp bearing the date of its receipt in the registry as 30th May, 2019, the filing fees for the reference was only paid on 11th June, 2019 yet the reference ought to have been filed and paid for by the close of business on 4th June, 2019. In support of their submissions the Applicants relied on Charles Onyinge Abuso vs. Kenya Ports Authority & Another [2018] eKLR and Mario Rossi vs. Salama Beach Hotel Limited [2018] eKLR.

9. It was the Applicants’ case that the reference was lacking in merit as the Learned Single Judge correctly exercised his inherent discretionary jurisdiction in granting the application to file and serve a Notice of Appeal. We were therefore urged to dismiss the reference with costs.

10. We have considered the submissions made by the parties in this reference. Rule 57(1)(b) of the Court of Appeal Rules, 2022 provides that:Where under the proviso to section 5 of the Act, any person, being dissatisfied with the decision of a single judge—(b)in a civil matter, wishes to have any order, direction or decision of a single judge varied, discharged or reversed by the Court, that person may apply therefor informally to the judge at the time when the decision is given or by writing to the Registrar within seven days thereafter.

11. It is therefore clear that an application for reference may either be made informally at the time the decision is made or in writing within seven days hereafter. It follows that it is not necessarily fatal to the application that payment is not made at the time that the application is made since such an application may even be made orally immediately after the decision is made. Accordingly, we find no merit in the Applicants’ objection that the reference was made out of time due to non-payment of the filing fees.

12. As regards the issues raised by the Respondent, the Learned Single Judge in his decision under challenge found that the Applicants had disclosed an arguable point as regards the execution of the judgement being caught up by limitation and hence the intended appeal was not frivolous. As regards the issue whether the lawyers were on record for the Applicants’ in the struck out application, the Learned Single Judge was unable to make a determination on the issue due to lack of sufficient information or material. He however stated that in the absence of an application seeking to bar the lawyers from acting, he would not dwell on the matter. The Learned Single Judge however disagreed with the position taken by the Respondents that the application ought to have been made before the High Court first. He accordingly granted the prayers sought in the Motion.

13. We have considered the submissions of Learned Counsel in this reference. The circumstances under which a full bench of this Court interferes with the exercise of discretion by a single Judge are now well settled. This Court in; Kenya Canners Limited Vs. Titus Muiruri Doge Civil Application No. Nai. 119 of 1996 held that:“A reference to the full court is not an appeal although it is in the nature of one and in exercising the discretion under rule 4, the single judge was exercising the power on behalf of the full court and his discretion would not therefore be easily upset except on sound principles and these are that the single judge took into account an irrelevant matter which he ought not to have taken into account, or that he failed to take into account a relevant matter which he ought to have taken into account; that he misapprehended or not properly appreciated some point of law or fact applicable to that issue; or that the decision, looked at in relation to the available evidence and the relevant law is plainly wrong…A breach of any or all of such principles would entitle the full court to interfere and the applicant must satisfy the Court that it ought to do so.”

14. From the submissions made before us the decision of the Single Learned Judge has been assailed by the Respondents on two grounds: First, that the Learned Judge failed to find that the application was made by an advocate who was not properly on record; and secondly, that the Learned Judge erroneously found that the issue of limitation was arguable or not frivolous.

15. Starting with the last issue, it is clear from the decisions cited by the Learned Single Judge that the chances of the appeal succeeding if the application is granted is merely a possible consideration. While that is an issue that is considered in an application under rule 5(2)(b) of the Rules of this Court, it is only a possible consideration in an application brought under rule 4 of the Rules. In other words, it is not necessarily dispositive of an application such as the instant one, seeking extension of time. In fact, in Kenya Canners Limited vs. Titus Muiruri Doge (supra), following the cue in African Airline International Ltd vs Eastern & Southern African Trade & Development Bank (PTA Bank)[2003] KLR 140 held that it is for the full court to make the pronouncement that the intended appeal has nothing of substance or lacks merit. Accordingly, we find no merit in this ground of challenge.

16. As regards the issue whether or not the application was brought by an advocate on record, it was not contested that there was an earlier application in which the present advocate was on record for the Applicants though the same was struck out. According to the Respondents that application having been struck out, in order for the same advocate to properly file a subsequent application he ought to have either filed a notice of appointment or change of advocates in the proceedings intended to be appealed from or filed the same together with the application the subject of this reference.

17. The point taken is not without precedent. Deverell, JA dealt with issue in Shah vs. Kenbox Industries Ltd [2005] 1 KLR 822 in which he expressed himself as hereunder:“It is doubtful whether a single judge can make a finding that notices of appeal or other documents listed in rule 51(2), which have not been struck out as being invalid, are nevertheless to be treated by him to be nullities when acting as a single judge for the purposes of an application for extension of time…Whereas there is a specific reference in rule 5(2)(a) and (b) to the necessity for the existence of a Notice of Appeal having been given or lodged, there is no such requirement expressed in rule 4. It would therefore seem that there is no reason why the Judge should consider himself as lacking jurisdiction as a single judge to make orders extending time for the filing of a Notice of Appeal in a situation where either no Notice of Appeal has yet been filed or where the Notice of Appeal, which has been filed is defective…Rule 22 of the Court of Appeal Rules deals with appearances. There is a distinction between “appearance” and “signing”. The former deals with the presence in Court or chambers at the hearing of an appeal or application while the latter deals with execution of formal documents such as notices of appeal and notices of motion etc. There is no provision in the Rules importing into the Court any of the Civil Procedure Rules relating to change of advocates. There is no reference in rule 22 or 23 to the advocate on record in the Superior Court having to be the advocate for the appellant for the purpose of signing the Notice of Appeal or any application in relation to the appeal until changed in accordance with rule 23…Rule 76(2) does not deal with the authority to sign but only deals with the address for service of the notice of Appeal. The rule expressly states that the address for service may be that of an advocate who has not been retained for the purposes of the appeal. The expression “be considered the advocate of the party” enables the other party to treat the former advocate as still having authority to take any steps in relation to the matter. But these words do not prevent a new advocate who has been authorised and instructed by his client so to do and in respect of whom there has been compliance with Order 3 (9A), from validly performing that task. Provided that he has actual authority then his authorised actions are not rendered void by this provision. He has signed the notice of appeal “on behalf of the appellant” which is the only relevant requirement in rule 74(6)…Therefore the Notice of Appeal and a Notice of Motion in the Court of Appeal can be signed by any advocate who has, as a matter of fact, the authority of the intended appellant to sign the notice irrespective of whether or not the advocate is or is not on the record, or considered the advocate of the party in the High Court.”

18. The same view was adopted by Musinga, JA (as he then was) in Mary Nchekei Paul v Francis Mundia Ruga [2019] eKLR where the Learned President of this Court expressed himself as hereunder:“This Court has its own rules of procedure, the Court of Appeal Rules, and the cited provisions of the Civil Procedure Rules are therefore inapplicable. Rule 23 of the Court of Appeal Rules that addresses the issue of change of advocate states as follows:-“(1) Where a party to any application or appeal changes his advocate or, having been represented by an advocate, decides to act in person or, having acted in person, engages an advocate, he shall, as soon as practicable, lodge with the Registrar a notice of the change and shall serve a copy of such notice on the other party or on every other party appearing in person or separately represented, as the case may be.(2)An advocate who desires to cease acting for any party in a civil appeal or application, may apply by notice of motion before a single Judge for leave to so cease acting, and such advocate shall be deemed to have ceased to act for such party upon service on the party of a certified copy of the order of the judge.”M/s G.M. Wanjohi Advocates never acted for the applicant in this matter, they represented her before the trial court. The application before me was filed by C.M. King’ori Advocates. It is a fresh application and so the said advocates are properly on record. If the application had been filed by M/s G.W. Wanjohi Advocates then M/s C.M. King’ori Advocates would have been required to comply with rule 23 of the Court’s Rules but that is not the case.”

19. Though these decisions were made by the single judges of this court we hold the view that the opinions expressed therein is the correct legal position. An advocate who has been instructed to commence legal proceedings in this court does not require to file a notice of appointment of advocate or notice of change of advocates the proceedings herein being fresh proceedings which are commenced under the Court of Appeal Rules, just like the advocate filing a plaint or any other originating pleadings in the High Court.

20. As regards the concept of “corporate” applicants, we do not agree with the submission that once leave to file a notice of appeal and record of appeal out of time is granted, any subsequent step taken in pursuance of the said leave must be “corporate” as Mr Kimani terms it. A party to whom leave to appeal out of time has been granted has the option of taking advantage of that leave or not. The court cannot compel or dictate to such a party on how to move forward. Therefore, if some of the applicants failed to give further instructions as regards the filing of the notice of appeal or record of Appeal the “willing” applicants cannot be derailed in proceeding with the matter. Accordingly, we find that nothing turns on this issue which in any case was not taken up before the Single Learned Judge and is not an issue in this reference. Rule 57(2) of this Court’s Rules provides that:At the hearing by the court of an application previously decided by a single judge, no additional evidence shall be adduced.

21. We have considered the grounds raised in these reference and we are not satisfied that the Learned Single Judge took into account an irrelevant matter which he ought not to have taken into account, or that he failed to take into account a relevant matter which he ought to have taken into account; or that he misapprehended or not properly appreciated some point of law or fact applicable to that issue; or that the decision, looked at in relation to the available evidence and the relevant law is plainly wrong.

22. We dismiss the reference with costs to the applicants.

23. It is so ordered.

DATED AND DELIVERED AT MOMBASA THIS 23RD DAY OF JUNE, 2023S. GATEMBU KAIRU, FCIArb...............................JUDGE OF APPEALP. NYAMWEYA..............................JUDGE OF APPEALG.V. ODUNGA..............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR