Ekesa v Mbayaki & another (Civil Appeal 108 of 2018) [2023] KECA 392 (KLR) (31 March 2023) (Judgment)
Neutral citation:
[2023] KECA 392 (KLR)
Republic of Kenya
Civil Appeal 108 of 2018
PO Kiage, F Tuiyott & JM Ngugi, JJA
March 31, 2023
Between
Francis Ekesa
Appellant
and
Andrew Mbayaki
1st Respondent
Namulanda Siganga
2nd Respondent
(Being an appeal from the ruling of the Environment and Land Court at Kakamega (Matheka, J.) dated 27th June, 2018 in ELC No. 51 of 2012
Environment & Land Case 51 of 2012
)
Judgment
JUDGMENT OF TUIYOTT, JA
1.The action by Francis Ekesa (Ekesa), the appellant, against Andrew Mbayaki and Namulanda Siganga, the respondents, involving an alleged trespass over land parcel known and described as Budonga/Bundonga/1799 was not heard on merit. It was dismissed for want of prosecution by the Environment and Land Court (ELC) at Kakamega on July 8, 2015.
2.Unhappy with the dismissal, Mr. Ekesa through his then advocates Ndegwa Waweru & Co. Advocate, moved the ELC for review of the dismissal order through a notice of motion dated September 27, 2016. The motion was unsuccessful and, in disallowing it on November 15, 2017, Matheka, J held as follows:-
3.On March 21, 2018, Ekesa filed a notice of intention to act in person and simultaneously filed a notice of motion seeking in the main, that the orders of November 15, 2017be reviewed and the suit be reinstated for hearing. In support of that application Ekesa stated that: on several occasions he visited the office of his advocates with the purpose of having his case prosecuted and was surprised to learn that the suit had been dismissed for want of prosecution; he was never served with a notice for dismissal; his advocates gave him the impression that the suit was still pending and; that mistake of his advocate should not be visited on him, a poor litigant.
4.The ELC was unimpressed by those reasons and in a ruling dated June 27, 2018, Matheka J stated:
5.Ekesa is undeterred and is before us on appeal against this latter decision and seeks to persuade us that the learned Judge erred in law by:i.not considering that the appellant’s application dated March 21, 2018was not opposed by the 1st and 2nd respondents,ii.not considering that the dispute between the parties was a land matter and the same had to be heard and determined on merit.iii.dismissing the application dated March 21, 2018by not allowing the appellant argue his application.Ekesa prays that we allow his appeal with costs and the impugned ruling be set aside.
6.At the hearing of the appeal only Mr. Ekesa appeared notwithstanding that the respondents had been duly served. Ekesa elected to rely on his written submissions dated September 28, 2022without making any highlights. In those submissions, the appeal regurgitates the grounds set out in support of the application for review dated March 21, 2018and adds that as a matter of law, when a party appoints an advocate, the advocate advises the client on all the legal matters respecting the case and that in this instance, he relied on his advocate’s advice. Further that disputes touching on land have created historical injustices and should be handled with a lot of sensitivity, and dismissing them for want of prosecution blocked parties from ventilating the real issues in question.
7.The decision sought to be impeached arises from an application for review of the ELC’s earlier decision. The substantive provision for review in the Civil Procedure Act is section 80- which reads:
8.Order 45 rule 1 of the Civil Procedure Rules,2010 (then applicable) fleshes out the circumstances under which review could (and still can) be sought and granted:
9.Implicit from these provisions is that the parameters are narrow. Of these parameters this court has spoken time and again. For example, in Julius Ochieng Oloo & another –v- Lilian Wanjiku Gitonga (2019) eKLR,the Court held:Supplemental to the above is that the applicationmust be brought without unreasonable delay.”
10.On the meaning to be assigned to “for any other sufficient reason” in the context of a review application, thiscourt in Pancras T. Swai vs Kenya Breweries Limited [2014] eKLR had this to say about the position that now holds sway;
11.In that same decision thecourt made this important observation;
12.The application by Ekesa, it bears repeating, was premised on the following reasons: that he was keen on prosecuting his suit but was surprised to learn of its dismissal for want of prosecution; he was never served with any notice of dismissal; his advocates informed him that the matter was pending in court and he was surprised that the advocates never attended court as promised; mistake of his advocates should not be visited on him, a poor litigant; the grant of the application would not prejudice the respondents and; the relief sought would meet the ends of justice. Quite clearly none of these reasons or grounds amounts to discovery of a new and important matter or evidence or a mistake or error apparent on the face of the record or “any other sufficient reason” as delineated by our jurisprudence. To try and fit the grounds put forward by Ekesa to the strictures of a review application is to attempt to fit a round peg in a square hole, an intractable task, indeed impossible. The learned Judge cannot be faulted for rejecting that attempt. If Ekesa is of the conviction that his dilemma resulted from the negligence of advocates, then he would and should know that his remedy lies elsewhere.
13.I would propose that the appeal be dismissed but as the respondents neither filed submissions nor attended the hearing then there should be no order on costs.
JUDGMENT OF KIAGE, JA
14.I have had the benefit of reading in draft the judgment of Tuiyott, JA. I entirely agree with his reasoning and conclusions, and have nothing useful to add.
15.As Joel Ngugi, JA is also in agreement, the final orders in the appeal are as proposed by Tuiyott, JA.
JUDGMENT OF JOEL NGUGI, JA
16.I have had the advantage of reading in draft the judgment of Tuiyott, JA. I entirely agree with his reasoning and conclusions, and have nothing useful to add.
DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF MARCH,2023.F. TUIYOTT………………………………… JUDGE OF APPEALP. O. KIAGE ……………………………..JUDGE OF APPEALJOEL NGUGI……………………………..JUDGE OF APPEALI certify that this is a true copy of the original.SIGNEDDEPUTY REGISTRAR.