Beatrice Malesi v Peter Ndiritu & Another [2020] KEELC 3649 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI LAW COURTS

ELC CIVIL MISC APP.NO 76 OF 2019

BEATRICE MALESI..................................................................................APPLICANT

VERSUS

PETER NDIRITU & ANOTHER.........................................................RESPONDENT

JUDGEMENT

1.  By a Notice of Motion dated 7th May 2019, the Applicant sought leave  to file an appeal against the Judgement of M/s I Gichohi SRM  delivered on 24th December 2018. The Applicant argues that the      case was heard at Milimani Commercial Court within Nairobi but as at the time the Judgement was delivered, the trial magistrate had been   transferred to Kangema Law Court. The Judgement was delivered in   Nairobi on her   behalf by Mr D O Mbeja S RM.

2.  The Applicant contends that there was no Notice of delivery of   Judgement issued and as such the Applicant only came to know about  it when the 1st Respondent went to the ground to sub divide the suit  property. It is then that the Applicant informed her Advocate who went to court and found out that Judgement was delivered in the  absence of the Advocates for the parties.

3.   The 1st Respondent has opposed the Applicant’s application through a  replying affidavit sworn on 16th September 2019. The 1st Respondent  contends that there was a notice of delivery of Judgement which was pinned outside the door of the court where the Judgement was delivered; that the Applicant is out to delay the realization of the fruits  of his judgement and that the intended appeal has no arguable ground as the 1st Respondents property is separate from that of the Applicant   and that the issue of subdivision does not arise.

4.   I have considered the Applicant’s application and the opposition thereto by the Respondent. I have also considered the submissions by    the parties. The only issue for determination is whether the Applicant has demonstrated that she has grounds upon which this court can exercise its discretion to extend time. In Paul Musili  Wambua-Vs-Attorney General & 2 Others (2015) eKLR Justice Koome J A stated as     follows:-

“It is now well settled by a long line of authorities by this court that the decision of whether or not to extend time for filing an appeal the  Judge exercises unfettered discretion However, in the exercise of such  discretion, the court must act upon reasons not based on whims or  caprice. In general the matters which a court takes into account in deciding whether to grant an extension of time are; the length of the  delay, the reason for the delay, the chances of the appeal succeeding if  the application is granted, the degree of prejudice to the Respondent if the application is granted”.

5.  In the instant case, Judgement was delivered on 24th December 2018.  This application was filed on 8th May 2019. This was a delay of over four months. What was the reason for the delay?. The Applicant states that there was no notice of delivery of Judgement given. The Applicant came to know about the Judgement when the 1st  Respondent went to the ground to sub divide the suit property. I have   looked at the Judgement which was delivered. There were no advocates present. Though the Respondent claims that there was a notice pinned outside the court rooms, that does not amount to a notice to the parties. Order 21 Rule 1 of the Civil Procedure Rules provides that if judgement is not delivered at once or within 60 days  from conclusion of the trial notice shall be given to parties or their   advocates.

6.  There is no evidence that notice was given as required because  judgement was not delivered within the 60 days given under Order 21 Rule 1. Even if there was notice pinned outside the court room, there is no way the parties would have known about the matter. The Respondent or his lawyers were not in court either. I therefore find   that the delay has been explained.

7.  The Applicant contends that the 2nd Respondent had allocated it to the suit property but that the same Respondent later illegally subdivided it  and sold it to someone else who in turn sold it to the 1st Respondent. It  is therefore clear that the appeal raises an arguable ground. It has been  said that an arguable appeal is not one which will necessarily succeed.

9.  The 1st Respondent’s contention is that his plot is separate from that of  the Applicant. If that be the case, I do not see what prejudice he will suffer if the Applicant is allowed to appeal. If the 1st Respondent has constructed permanent structures which are on his land, there is no   prejudice which he will suffer. I therefore find that this is a proper case  where to exercise discretion in favour of the Applicant. I therefore allow the Applicant’s application and extend the period for filing the  appeal by 14 days. Costs of this application shall be costs in the appeal. It is so ordered.

Dated, Signed and delivered at Nairobi on this 30thday of January 2020.

E.O.OBAGA

JUDGE

In the presence of:

Mr. Mwangi for 1st defendant /respondent

Mr. Owange for 2nd defendant.

Court Assistant : Waweru

E.O. OBAGA

JUDGE