Omondi v Ogutu

e. Costs be costs in the intended appeal. 4. Essentially in both the grounds in support of the motion and depositions contained in the adavit, the applicant makes several assertions. 5. It is his contestation that judgment was entered against him in the lower court in Siaya MC ELC E038 of 2022 (lower court suit) which ordered his eviction from land parcel no. Central Alego/ Nyalgunga/1746. 6. He asserts upon issuance of the orders, he instructed his advocate on record to prefer an appeal but he has since learnt no such appeal was led hence the motion. In his view, this is a good and sucient reason as to why the appeal was not led timeously. Therefore, he asserts the mistake of his previous counsel on record should not be visited upon him. Respondent’s case 7. By Mr. Ochanyo. B. Ochanyo, the respondent’s counseel attacked the motion by applying a 2-pronged approach- by ling the PO that is the subject of this ruling and a replying adavit sworn by the respondent on 30/04/2024. 8. The PO raised the raised the following points of law: a. The motion contravenes the mandatory provisions of Order 9 Rule 9 (a) of the Civil Procedure Rules. b. Therefore, the motion is bad in law, incompetent, misconceived, an abuse of the court’s time and judicial process, and should be dismissed. 9. As for the replying adavit, the respondent avers the motion is led inordinately late and the applicant has failed to expound on the reasons for the delay. 10. Further, he contends, that though the applicant was previously represented by the law rm of Ms. Odhiambo Odera & Associates Advocates (previous advocate), the alleged instructions to that rm to appeal are non-existent. He also rehashed the contents of the PO. 11. Lastly, he asserts in the absence of a draft memorandum of appeal, the applicant has failed to establish he has an arguable case and contends the applicant is indolent and has not come to this court with clean hands. Thus, he urges the court to dismiss the motion. Applicant’s rebuttal to the PO 12. In refutation to the PO, the law rm of M/s. Otieno Okanda & Co. Advocates led grounds of opposition dated 5/06/2024 that raises the following grounds: a. The PO is irredeemably incompetent, bad in law, and an abuse of court process. b. The motion is led in compliance with the law. c. The PO is founded on a misunderstanding of basic legal principles and/or improper comprehension of the motion. d. The PO should be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13837/eng@2024-12-11 2

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Parties’ submissions 13. As directed by the court, parties led written submissions. The applicant’s counsel led his written submissions and identied 2 issues as arising for resolution- whether the motion is merited and whether there is non-compliance with Order 9 Rule 9 of the Civil Procedure Rules. 14. It is noted the applicant’s submissions argued on stay of execution yet the relief is spent as the motion only sought an order of stay of execution of the lower court suit pending the inter parties hearing of the motion. 15. Mr. Ochanyo. B. Ochanyo for the respondent led written submissions dated 6/6/2024 in which counsel identied a single issue for determination- whether the motion is merited. 16. Upon identifying and considering the issues for determination, this ruling shall later on in its analysis and determination, consider each of the counsels' arguments on the particular issue and also bear in mind the provisions of law and judicial precedents that they have both relied upon to buttress their respective arguments. Issues for determination 17. Having carefully given thought to the motion, its grounds, adavits, PO, and rival submissions, the issues that commend themselves for determination and which shall be addressed consecutively are: a. Whether the PO has met the legal threshold. b. If (a) is in the positive, is the PO merited? c. Whether it was necessary for the rm of M/s. Otieno Okanda & Co. Advocates to seek leave to come on record for the applicant. d. Whether leave should be granted for the applicant to appeal out of time against the lower court suit. e. What orders should this court issue including an order as to costs? Analysis and determination a. Whether the PO has met the legal threshold. 18. The case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (Supra) has long settled the principle of POs. A PO must be on a point of law and it is premised on the assumption that all the facts pleaded by the other side are correct. On page 700 paragraphs D-F Law JA had this to say on this decision: “ ...A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a 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 the dispute to arbitration.” 19. On application of the principles of Mukisa (supra), the tests to be applied are 3 namely, the PO raises a pure point of law, there is a demonstration that all the facts pleaded by the other side are correct and lastly, the facts need not be ascertained. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13837/eng@2024-12-11 3

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20. The respondent’s point of law challenges the competency of the motion for ostensibly contravening the provisions of Order 9 Rule 9 of the Civil Procedure Rules. It contends the law rm of M/s. Otieno Okanda & Co. Advocates has not sought leave to come on record for the applicant post-judgment. 21. Having considered the rival arguments and considering the ingredients of Mukisa (supra), it is my nding though the PO as raised can dispose of the motion, it does not meet the threshold of a PO. 22. My reason for arriving at this is that although Mr. Ochanyo B. Ochanyo argues the law rm of M/s. Otieno Okanda & Co. Advocates needed rst to seek leave to come on record before ling the motion, the applicant’s counsel asserts that the reliefs sought in the motion include a prayer for such leave. It suces the facts as pleaded by the parties are in dispute. This renders a determination on the issue (b) unnecessary. b. Whether it was necessary for the rm of M/s. Otieno Okanda & Co. Advocates to seek leave to come on record for the applicant. 23. Order 9 Rules 9 and 10 of the Civil Procedure Rules provide that post-judgment, any change of advocate has to be carried out with leave of the court. 24. Rule 10 makes allowance for seeking composite reliefs as the relief for leave to come on record can be combined with other prayers on condition the question of change of advocate or party intending to act in person shall be determined rst. 25. The applicant’s counsel contends that he has fully complied with the law while Mr. Ochanyo. B. Ochanyo argues that the applicant’s counsel should have 1st led a separate application seeking leave to come on record and once such leave is allowed, only then can the applicant seek other reliefs. 26. Having considered the rival submissions, it is my humble view that Mr. Ochanyo. B. Ochanyo miscomprehended the clear provisions of Order 9 Rule 10 of the Civil Procedure Rules. I have had an opportunity to carefully read the decisions the counsel relies upon to buttress his arguments particularly the decision of James Ndonyu Njogu v Muriuki Macharia [2020] KEELC 486 (KLR). The portion the counsel relies upon is non-existent. 27. It can only be concluded that counsel intended to mislead the court and this court has not taken his actions kindly. As for the decision of John Langat v Kipkemoi Terer, Independent Electoral and Boundaries Commission & Interim County Assembly Clerk Bomet County [2013] KEHC 2039 (KLR) that counsel relies upon, it is my conclusion it is distinguishable from this case and in any event, it is persuasive and older than Tobias M. Wafubwa v Ben Butali [2017] KECA 142 (KLR) which is a Court of Appeal decision and binding on this court. 28. Further, in my considered view and as has been held in various court decisions, the intent of Order 9 Rules 9 and 10 of the Civil Procedure Rules is to cure the mischief of litigants sacking their advocates at the execution stage or at the point of ling their bill of costs thus denying their advocates their hardearned fees. Had this court been the rst court to hear and determine the matter, I would not have hesitated to uphold that once judgment has been rendered, leave has to be sought from the trial court. 29. However, the scenario is dierent in the instant case, this court is sitting as an appellate court. In my view, Order 9 Rules 9 and 10 of the Civil Procedure Rules do not apply in instances of an appeal because the then applicant’s counsel’s instructions in a lower court were exhausted after the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13837/eng@2024-12-11 4

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concluded. At an appellate stage, the applicant had a right to representation of his choice. I am bound by the case of Tobias (Supra) which held thus; “ Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to le a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate.” 30. The law rm of M/s. Otieno Okanda & Co. Advocates is properly on record and it did not need to seek leave at an appellate stage. This prayer by the applicant is misplaced. c. Whether leave should be granted for the applicant to appeal out of time against the lower court suit. 31. Section 79G of the Civil Procedure Act provides that appeals originating from the lower court should be led before this court within 30 days from the date of the decree or order appealed against. 32. However, in occasions of delay, parties can by Section 95 of the Civil Procedure Act, move this court to exercise its judicious discretion based on good and sucient grounds and the court may extend the time as it deems t even if the time originally xed has expired. Section 79G of the Civil Procedure Act states; “ Every 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.” While Section 95 of the Civil Procedure Act provides as follows: “ Where any period is xed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally xed or granted may have expired.” 33. The Supreme Court of Kenya decision of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) at paragraph 85 distilled the non-exhaustive principles that courts consider in the exercise of judicial discretion when faced with a prayer for leave to appeal out of time thus:“ Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; Whether there will be any prejudice suered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and whether in certain cases, like election petitions, public interest should be a consideration for extending time.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13837/eng@2024-12-11 5

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34. In rendering this decision, the apex court cited with approval several authorities including the wellcited decision of Leo Sila Mutiso V. Rose Hellen Wangari Mwangi - Civil Application No. NAI 255 of 1997 (unreported) which stated: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are rst the length of the delay secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted.” 35. In considering the motion, this court has to bear in mind that though it has unfettered discretion, it must exercise its judicious discretion which is anchored on reason, material, and evidence placed before it. Since the circumstances of each case are unique as even a singular day could be tantamount to delay, each case has to be considered on its set of conditions. 36. In addition, this court must also consider its principal objective of facilitating the just, expeditious, proportionate, and accessible resolution of disputes as provided for in Section 3 of the Environment and Land Court Act. 37. The applicant’s counsel argues the applicant has presented a sucient cause as to why there was a delay and it is not necessary for the applicant to annex a draft memorandum of appeal and relies on the persuasive decision of Joseph Odide Walome v David Mbadi Akello [2022] KEHC 2748 (KLR) where the court stated:“ As to whether there is an appeal with chances of succeeding, the applicant has not annexed any memorandum of appeal to enable this court consider the chances of success of the same. This is not to say that failure to annex a draft copy of memorandum of appeal would be fatal to the application herein but to demonstrate the arguability of the intended appeal.” 38. Whereas notwithstanding Mr. Ochanyo. B. Ochanyo did not argue on this issue, the respondent’s replying adavit contends there is a delay, there is no evidence the appeal is arguable, and sucient reasons for the delay have not been tendered. 39. On the principle of delay, the impugned decision was rendered on 30/01/2024, the decree executed on 27/02/2024, and the motion led on 04/04/2024- a period of close to 2 months from the date of the decree or 3 months from the date of judgment. On this, I must agree with the applicant’s counsel that the delay is not inordinate. 40. On the principle of reasons for the delay, it is worth noting since the extension of time is a creature of equity, it is expected the applicant can only enjoy the relief of extension of time if he acts equitably. This is anchored on the legal maxim that he who seeks equity must do equity. 41. Thus, the onus is on the applicant to demonstrate he is not at fault to let time lapse. The applicant blamed his previous advocates for failing to heed his instructions on lodging an appeal. 42. However, his adavit discloses very little information on these alleged instructions. One would have expected him to substantiate and give such information as when he gave instructions, who this counsel was or the law rm he/she worked with, the follow-up he made, how the legal fee towards such an appeal was to be paid, steps he took to conrm if his instructions were followed through or how he found out if the appeal had not been led. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13837/eng@2024-12-11 6

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43. The court has been kept in the dark on this crucial information and I must agree with the averment contained in the respondent’s replying adavit that the applicant has not tendered convincing reasons as to why the appeal was not led timeously. 44. On the principle of arguability of the appeal, it is not in contention that the applicant did not tender a draft memorandum of appeal. While I agree with the applicant’s counsel that failure to tender one is not fatal, the applicant’s supporting documents did not demonstrate the appeal is arguable. The supporting adavit too did not assert that the appeal is arguable. 45. The burden was upon the applicant to demonstrate by way of evidence, plausible and satisfactory reasons for the delay and arguability of the appeal, and in the absence, I must conclude, nd, and hold the applicant has not met the ingredients to warrant enlarging the time for him to le an appeal out of time. 46. On issue (e), it is trite law costs follow the event and since the motion and PO were both unsuccessful, each party shall bear their respective costs of the motion and PO. This court hereby issues the following disposal orders:a. The notice of motion led on 25/04/2024 is hereby dismissed. b. The grounds of the preliminary objection dated 30/04/2024 are hereby dismissed. c. Each party shall bear their respective costs. It is so ordered. DELIVERED AND DATED AT SIAYA THIS 11TH DAY OF DECEMBER 2024. HON. A. Y. KOROSS JUDGE 11/12/2024 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: In the Presence of;Mr. Okanda for the appellant N/a for the respondent Court assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13837/eng@2024-12-11 7

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