Amudavi & another v Ambani (Sued through his personal representative/administratrix Gladys Maraga alias Maraka); Sakha & another (Interested Parties) [2024] KEELC 13912 (KLR)

Amudavi & another v Ambani (Sued through his personal representative/administratrix Gladys Maraga alias Maraka); Sakha & another (Interested Parties) (Enviromental and Land Originating Summons 23 of 2019) [2024] KEELC 13912 (KLR) (16 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13912 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Enviromental and Land Originating Summons 23 of 2019

DO Ohungo, J

December 16, 2024

Between

Airis Minyikha Amudavi

1st Claimant

Achayo Josephine Okechi

2nd Claimant

and

Jairo Sakha Ambani (Sued through his personal representative/administratrix Gladys Maraga alias Maraka)

Respondent

and

Michael Musuku Sakha

Interested Party

Gladys Shanyisa W/O Joseph Shisakha

Interested Party

Ruling

1. This ruling is in respect of Interested Parties/Applicants’ Notice of Motion dated 11th December 2023. The following orders are sought in the application:a.That this application be certified urgent, heard on priority basis and service be dispensed within the first instance.b.That Kakamega ELC NO. 23 OF 2019 be consolidated with ELC Kakamega No. 24/2019 AND 25/2019 for purpose of hearing and disposal of this application.c.That pending the hearing and determination of this application, this Honourable Court be pleased to issue an order of stay of the execution of the Ruling delivered on the 31st of October 2023. d.That upon hearing of this application, this Honourable Court be pleased to extend time and allow the Applicant herein to lodge its Notice of Appeal out of time against the Ruling of Hon. Justice D.O OHUGO (sic) delivered on the 31st October 2023 in this suit.e.That the annexed Notice of Appeal dated and filed on 20th of November 2023 be deemed as duly filed and properly on record.f.That upon hearing of this application, this Honourable Court be pleased to issue an order of stay of execution of the Ruling delivered on 31st October 2023 pending the hearing and determination of the intended appeal in the Court of Appeal.g.That the costs of this application be provided for.

2. The application is supported by an affidavit sworn by Michael Sakha who deposed that their advocate tried to get the date of the ruling in respect of Notice of Motion dated 31st May 2023 from the e-filing system in vain and only learnt of the ruling after the statutory period for filing an appeal had lapsed. He added that their advocate nevertheless filed Notice of Appeal on 20th November 2023.

3. The Plaintiffs/Claimants opposed the application through a Replying Affidavit sworn by Josephine Achayo Okechi. She deposed that the ruling of 31st October 2023 was delivered in the presence of Mr Owuor who was instructed by Mr Mshindi for the applicants and that it is therefore dishonest for the applicants to claim that the date of the ruling was not communicated to them. That having filed a Notice of Appeal, the matter was beyond this Court and that the order sought to be appealed against being a dismissal, there is nothing to necessitate stay of execution. She also deposed that the matters cannot be consolidated since they are all concluded.

4. The application was canvassed through written submissions. The Interested Parties/Applicants filed submissions dated 23rd April 2024 while the Plaintiffs/Claimants filed submissions dated 12th June 2024.

5. I have carefully considered the application, the affidavits and the submissions. The Interested Parties/Applicants seek extension of time to enable them file Notice of Appeal against the ruling delivered by this Court on 31st October 2023. The principles applicable to such an application for extension of time were discussed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as follows:This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion: 1. 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;

2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court

3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the respondents if the extension is granted;

6. Whether the application has been brought without undue delay; ...

6. The Interested Parties/Applicants contend that they were not aware of the date when the ruling was to be delivered. That is a patently misleading statement which is regrettably made on oath. The record shows that the date of ruling was given in court on 20th September 2023 and in the presence of Mr Mshindi for the Interested Parties/Applicants. Ultimately, the ruling was delivered as scheduled on 31st October 2023, in the presence of Mr Owuor who was holding brief for Mr Mshindi for the Interested Parties/Applicants. It cannot therefore be true that the Interested Parties/Applicants were unaware of the date of the ruling or its actual delivery. A party seeking equitable relief must approach the Court with full and frank disclosure, without any iota of deceit. The Interested Parties/Applicants have failed that test. They have not laid a basis to the satisfaction of the Court, to warrant exercise of discretion in their favour or to merit the relief of extension of time.

7. The Interested Parties/Applicants also sought stay of execution of the ruling pending hearing and determination of an intended appeal to the Court of Appeal. That order is not available for two reasons. Firstly, the order of 31st October 2023 was simply a dismissal with no order on costs. It is a negative order which is incapable of execution, hence there is nothing to be stayed. See Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR and Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] eKLR.

8. The second reason an order of stay of execution pending hearing and determination of an appeal is not available is that the Interested Parties/Applicants have no valid appeal within the meaning of Order 42 rule 6 (4) of the Civil Procedure Rules.

9. In view of the foregoing discourse, I find that Notice of Motion dated 11th December 2023 lacks merit. Consequently, I dismiss it with costs to the Plaintiffs/Claimants.

DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 16THDAY OF DECEMBER 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Mr J Mukavale for the Plaintiffs/ClaimantsMr Balusi the Defendant/RespondentMr Owuor holding brief for Mr Mshindi for the Interested Parties/ApplicantsCourt Assistant: M Nguyayi