Gitau v Githinji & another

g) This Honorable Court be pleased to stay the execution of judgment and decree of Hon. J.A Ogonda in Ruiru SPM ELC Civil Suit No E65 of 2021 delivered on January 20, 2022 pending the hearing and determination of this appeal. h) Spent. i) This Honorable Court be pleased to and hereby do grant a temporary injunction restraining the Defendants by themselves, their agents, employees or anybody else whomsoever acting on their behalf from selling, transferring, auctioning, disposing o and/or otherwise howsoever interfering with Ruiru/Ruiru East Block 2/2580 pending the hearing and determination of this appeal. j) This Honorable Court be pleased to allow the Appellant to le the Record of appeal out of time. k) The costs of this Application be provided for. 2. The Application is based on the grounds summed up as follows; the Appellant was aggrieved with the trial Court Judgment delivered in Ruiru SPM ELC Suit No E65 of 2021 on 20/1/2022 necessitating the ling of his appeal; that without stay of execution orders against the said Judgment, the Appellant stands to suer irreparably as the Respondent is intent on disposing the suit land; that the annexed draft Memorandum of Appeal herein demonstrates an arguable appeal with high chances of success and absent any stay of execution orders, the appeal will be rendered nugatory; Appellant led the current appeal (sic) on 1/2/2022 through the rm of Tony Martin Law LLP which had no consent to come on record but subsequently obtained the said consent and led it in the trial Court. 3. It is further conceded that on 16/2/2023 this Honourable Court struck out the appeal for want of compliance with Order Rule 9 of the Civil Procedure Rules; that the mistake of counsel ought not be visited on the client and failure to le the consent does not go to the root of the dispute. That the Respondents will not suer any prejudice if the Application is allowed and if they do, the same can be mitigated by payment of throw away costs. 4. The Application is supported by the Adavit sworn on 1/3/2023 of John Michuki Gitau the Appellant. Reiterating the above grounds, the deponent averred that he has an arguable appeal as demonstrated in his draft Memorandum of Appeal annexed as JMG1 which will be rendered nugatory if the Application is disallowed. Copy of the Ruling delivered on 16/2/2023 is also attached as JMG2. Notably at para. 17 he avowed that the delay in ling the Memorandum of Appeal was due to the striking out of the initial Memorandum of Appeal. Citing Article 159 (2) (d) of the Constitution of Kenya the Appellant beseeched the Court to dispense justice without undue regard to procedural technicalities. 5. The Application is opposed. 6. The 1st Respondent Mary Njeri Githinji swore her Replying Adavit on 20/3/2023. She outlined the background of the Appellant’s appeal as lodged by a Memorandum of Appeal dated 1/2/2022 and an Application of even date. That the Respondents raised a Preliminary Objection against the Application for want of compliance with Order 9 Rule 9 Civil Procedure Rules. On 16/6/2022 this Court upheld the Preliminary Objection and again on 16/2/2023 the Court struck out the entire appeal as led by the Appellant. She averred that the instant suit was defective ab initio; the prayers sought cannot be granted as they are anchored on a null and void suit; the instant Application is frivolous and expressed on inappropriate legal provisions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17542/eng@2023-05-23 2

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7. The deponent contended that the Appellant has not tabled cogent reasons for this Court to depart from its ndings rendered on 16/6/2022 and 16/2/2023. That it is in the interests of justice, oxygen principles that the Application be dismissed to allow the 1st Respondent enjoy the fruits of her Jdt. 8. On 21/3/2023 directions were taken to canvass the Application by way of written submissions. 9. At the time of writing this opinion only the Appellant had led his submissions dated 3/4/2023 through the rm of Rumba Kinuthia & Co Advocates. 10. The provisions of Sections 1A and 1B of the Civil Procedure Act were highlighted alongside their Application as expounded in the case of Abok James Odera T/A AJ Odera & Associates v John Patrick Machira T/A Machira & Co Advocates [2013] eKLR. In addition, Articles 59, 159, 165 and 259 of the Constitution of Kenya were recited in urging the Court to exercise discretion and allow the Application. 11. On the provisions of Order 9 and 10 Civil Procedure Rules the Appellant relied on the case of Francis Omondi Odhiambo v Hippolitus Omondi Ochieng [2022]eKLR to argue that the said Civil Procedure Rules orders do not apply to appellate proceedings. In conclusion the Appellant reiterated that this Court has discretion to allow the rm of Rumba Kinuthia& Co Advocates to come on record in place of Lokitano & Co Advocates or Tony Martin Law LLP. That the Court reviews; set aside/vary the proceedings and Ruling issued on 16/2/2023; the Court deems this Appeal as properly led or in the alternative allow the Appellant to le the Memorandum of Appeal out of time; order stay of execution of the trial Court Judgment pending the hearing of the appeal and lastly grant temporary injunction against the Defendants (sic) from interfering with the suit land pending the determination of the appeal. 12. As to whether the rm of Advocates should be allowed to come on record, the Court guided by Order 9 rule 9 answers the question in the armative. 13. As to whether the Applicant should be allowed to le an appeal out of time, the Court is guided by the legal framework set out in Section 79B of the Civil Procedure Act which states as follows; “ 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to le the appeal is merited. Section 79G of the Civil Procedure Act provides that: appeal from a subordinate Court to the High Court shall be led 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 satises the Court that he had good and sucient cause for not ling the appeal in time.” 14. The Applicant has explained that the delay in ling the appeal is attributed to the Advocate who led the appeal that was struck out. Going by the record the Court nds the explanation plausible and that it would be unjust to hold the Applicant to the mistake of counsel. Purely in the interest of justice and to accord the parties the opportunity to be heard on the appeal the Court will allow the Application on terms set out below. 15. The upshot of the foregoing therefore is that the Application partly succeeds in the following terms; a. Application dated 16/2/2023 is allowed in terms of prayers b and e only. b. The Appellant to le a fresh appeal within 30 days of this date. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17542/eng@2023-05-23 3

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c. Appellant be at liberty to canvass prayers for stay of execution of the trial Court Judgment and temporary injunction pending appeal in the fresh appeal. d. Failure to abide by Orders b above, automatically leave so granted shall lapse without any further orders of this Court. e. Parties are related , I order that each to bear their own costs DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 23RD DAY OF MAY, 2023 VIA MICROSOFT TEAMS. J G KEMEI JUDGE Delivered online in the presence of Kuria for Appellant Muchiru together with Ms. Omwoyo for 1st and 2nd Respondents Court Assistants – Kevin & Lilian https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17542/eng@2023-05-23 4

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