Paul Odera Okode v Johnson Otieno Adera

known as Kamagambo/Kanyimach/787, “the suit property”, filed a suit in the Page 2 of 10

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ELC against the applicant seeking orders of eviction and demolition of any structures erected on the suit property by the applicant; a permanent injunction against the applicant from occupying, trespassing on, tilling or in any other way dealing with the suit property; general damages; costs and interest. [3] It was his claim that the applicant being the registered proprietor of the neighbouring parcel of land known L.R. No. Kamagambo/Kanyimach/579, had demolished his house on the suit property, forcefully trespassed upon and occupied it and erected thereon a residential structure, claiming that the suit property was his. As a result, he had been prevented from accessing the suit property to develop and use it. Of course, the applicant denied the averments by the respondent and maintained that the suit property was lawfully his. [4] The ELC, (Kullow, J.), delivered its judgment and decree in which it held in favour of the respondent and granted all the prayers sought in the plaint as aforesaid. [5] According to the applicant, the judgment and decree was delivered without his knowledge; and upon learning from his neighbours that he was to be evicted therefrom pursuant to the said judgment and decree, he immediately visited the ELC registry and indeed confirmed the aforesaid outcome. Page 3 of 10

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[6] The applicant went on to explain that he immediately confronted his then erstwhile lawyers on record regarding the outcome of the suit who feigned ignorance of the judgment and decree. Dissatisfied with the answer he then went out helter-skelter to source for funds so as to engage another law firm now on record. However, by then, the time limited under the Rules to file the appeal had lapsed, hence the application. He asserted that he had a good appeal with high chances of success. [7] In response and by way of a replying affidavit sworn by the respondent, he contended that this Court had no jurisdiction to entertain the application absent a valid notice of appeal filed and served on him as required by the Rules; that the applicant was all along aware of the judgment and decree as it was delivered in his presence and had subsequently been served with the decree; and that the respondent was therefore guilty of material non-disclosure of this fact as such he could not claim to have learnt of the judgment and decree as afore-stated. [8] He further deposed that the applicant had not demonstrated the existence of any of the established principles for granting extension of time; and could not fall back on mistake of counsel to buttress his application. [9] As required by the Rules, the application was placed before a Page 4 of 10

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single judge of this Court (Omondi JA) for consideration. The learned judge after reverting to the well-known prerequisites for granting relief under Rule Page 5 of 10

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4 of the Rules, turned down the application. The learned Judge observed and rightly so in our view, that Rule 4 of the Rules gives this Court unfettered discretion in deciding whether to grant an applicant extension of time to do a particular prescribed action. That In Leo Sila Mutiso vs. Rose Wangari Mwangi - Civil Application No. Nai. 255/97, it was held that the discretion of a single judge under Rule 4 is wide and unfettered. This discretion however must be exercised judiciously and upon reason, rather than arbitrarily, capriciously on a whim or sentiment as was held in Julius Kamau Kithaka vs. Waruguru Kithaki & 2 Others [2013] eKLR. That the discretion also depends on circumstances of each case [See Mongira & Another vs Makori & Another [2005] eKLR. [10] In dismissing the application with costs to the respondent, the learned single Judge observed: “The applicant only states that his previous advocate on record was not aware of the judgment and as such erred in failing to file notice of appeal. Surely, the applicant, or his current advocate had the option to request the former advocate on record to swear an affidavit to bolster the applicant’s case for extension of time as matters stand as whatever the applicant is alleging was an error remains a mere allegation at best, a lame excuse. I agree with the respondent that there is unexplained delay in regard to lodging the appeal as well as the instant application for leave.” [11] The learned single judge went on to observe that it is not Page 6 of 10

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possible for the applicant to have learnt of the judgment as he contended whereas Page 7 of 10

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there was evidence on record that he was served with the decree of the court much earlier on. [12] She also noted that the application had been filed on 21st September 2023 and that even if the applicant was to be given the benefit of the doubt, judgment was entered on 29 th July 2022, and had been almost a year down the line and it was not even clear when the current law firm came on record for the applicant. [13] If the applicant was dissatisfied with the Ruling and order aforesaid, he was required pursuant to Rule 57(1)(b) of the Rules to file a reference to the full court within seven (7) days of the date of the Ruling and order. However, he failed to do so. Nonetheless by a notice of Motion dated 1st July 2024, the applicant sought leave to file a reference out of time and explained reasons why he did not do so within time. Though the application was vehemently and strenuously opposed, Tuiyott, JA. reluctantly allowed the application despite misgivings regarding the applicant’s lack of candour. It is pursuant to that leave that we are entertaining this reference. [14] At the plenary hearing, the applicant was represented by Mr. Omondi T, learned counsel whereas the respondent appeared through Mr. Kenyatta, learned counsel. They all reiterated and expounded in their written submissions depositions in their various Page 8 of 10 the averments and

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filings. We therefore need not rehash them. Page 9 of 10

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[15] Rule 57 of the Rules provides inter alia: “Reference from the decision of a single judge (1) Where under the proviso to section 5 of the Act, any person, being dissatisfied with the decision of a single judge(a) In a criminal matter, wishes to have his or her application determined by court; or (b) In civil matter, wishes to have any order, direction or decision of a single judge varied, discharged or reversed by 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. (2) At the hearing by the court of an application previously decided by a single judge, no additional evidence shall be adduced.” [16] By a letter dated, 26th June 2024, the applicant’s current advocates pitched for this reference. In that letter, they faulted the single judge for crafting and delivering a ruling that ignored: the provisions regarding the extension of time under Rule 4 of the Rules; the explanation given for the delay in filing the appeal and finally, that the ruling ignored the fact that the applicant was going to lose a valuable asset, the suit property. [17] As can readily be seen, these so-called grounds for reference clearly violates the jurisdiction of a full bench hearing a reference. This jurisdiction is strictly supervisory and review based limited to varying, discharging, or reversing the single judge’s exercise of discretion. It is strictly therefore not an appeal from such refusal. To the extent that the applicant has set out what he considers to be Page 10 of 10

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grounds of the reference, they are irrelevant and of no consequence in the consideration of this reference therefor. Page 11 of 10

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[18]We are also aware that in a reference, there are extremely narrow grounds of interference. The full bench cannot for instance interfere simply because it would have reached a different decision. It only intervenes if the single judge considered irrelevant factors, ignored relevant factors, misapprehended the law or not properly appreciated some point of law or fact applicable to the issues at hand. The onus of demonstrating the breach of any or all such principles is on the applicant. See Ramesh Shah v Kenbox Industries Ltd [2008] eKLR and Donald Raballa v Judicial Services Commission & Anor [2018] KECA 641 (KLR). [19] We have anxiously considered the reference particularly in view of the caution that we must appreciate that a single judge in exercising his discretion under Rule 4 does so on behalf of the full court and therefore the decision ought not to be dislodged easily. As earlier stated, the full court may only interfere when the applicant demonstrably shows that the principles stated above were not considered. From a long list of authorities including Leo Sila Mutiso v Rose Hellen Wangari (supra) and Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, the single judge who has unfettered discretion to consider an application for extension of time should bear in mind the period of the delay, the reasons for delay, (possibly), the chances of the appeal succeeding if Page 12 of 10 the the

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application is granted, the the decree of prejudice to the respondent, Page 13 of 10

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effect of delay on public administration, the importance of compliance with time limits, the resources of the parties and whether the matter raises issues of public importance. [20] In this case the single judge declined the application for the reasons that it did not satisfy any or all the principles upon which the court exercises its discretion to extend time already stated elsewhere in this Ruling. [21] In the extract of the ruling of the single judge already produced, the single judge went out of her way to justify why the extension was not available to the applicant. She carefully applied her mind to the principles aforesaid and correctly reached the decision that the application be declined. In the absence of any evidence either by way of a replying affidavit or oral as to the reason why his erstwhile advocates failed to file the appeal for a lengthy period of time can only be surmised that they were guilty of inaction. In Bains Construction Co Ltd v John Mzare Ogowe [2011] eKLR, this Court observed that it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of litigation. [22] Courts have always emphasized that parties have a responsibility to show interest in and to follow up their cases even when they are represented by counsel. It therefore does not matter whether the Page 14 of 10

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party was schooled in legal procedures, indigent or was a functional illiterate. Page 15 of 10

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On this aspect, it is obvious that the applicant scores zero. Nor can his explanation that when it came to his attention that his erstwhile advocates had not acted on his instructions, he thereafter embarked on a journey to source for funds so as to engage his present lawyers sell. How much does it cost for instance, to file a notice of appeal or an application for extension of time? May be about Kshs.1000/-, at the very most! Are we to be persuaded that the applicant or his erstwhile advocates could not afford that kind of money for all that time? In any event, and woo to the day that this Court would court processes to be determined by when a party to the litigation has funds to move the court as appropriate. Perhaps, it may be pertinent to point out that, that should be the very reason that there should be a closure to these proceedings. [23] Further, and in our view the current advocates on record for the applicant cannot be said to have fared any better than the previous ones on account of want of candour. [24] Finally, on the question of jurisdiction, this is a none issue as the applicant got a nod from court extending time to file appeal out of time. That entails filing the notice of appeal out of time as well. There was no way the applicant would have filed a valid notice of appeal before the leave was granted. As it were, it would have amounted to putting a cart before the horse. Page 16 of 10

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[25] In the ultimate, we are satisfied that the reference is bereft of merit and is accordingly dismissed with costs to the respondent. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA ……………….………………… JUDGE OF APPEAL E.C. MWITA ……………….………………… JUDGE OF APPEAL B. ONGAYA ………………...……………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 17 of 10

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