Cheptula Tongelach v Jackson Chamir [2016] KECA 90 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: GATEMBU, JA. (IN CHAMBERS)

CIVIL APPLICATION NO. 21 OF 2016

CHEPTULA TONGELACH ……………....….….. APPLICANT

VERSUS

JACKSON CHAMIR …………………………. RESPONDENT

(Being an application for leave/extension of time to enable the Applicant to file and serve a Notice of Appeal out of time at Kitale, (Hon. E. Obaga, J.) delivered on 7th April, 2014 and the consequential eviction order issued on 22nd October, 2014

in

ELC NO. 5 OF 2006)

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RULING

1. By an application dated 31st December 2015, the applicant, Cheptula Tongelach, seeks leave under Rule 4    of the Rules of the Court to file and serve a notice of   appeal out of time. She seeks 21 days to do so. She intends to challenge a decision of the High Court   “delivered on 7th April 2014 and the consequential eviction order issued on 22nd October 2014. ”

2.  Appearing for the applicant, learned counsel J. O. Samba, referred to the grounds in support of the application and the supporting affidavit sworn by the applicant. The applicant says that she was one of the plaintiffs in Kitale High Court Civil Case No. 5 of 2006; that in that suit she complained that the respondent as owner of plot No. 52 had trespassed on plot numbers 51 and 54 situated at Kapsait, West Pokot and sought an order for the District Surveyor, West Pokot to rectify the boundaries between plots 51, 52 and 54. The applicant stated further that the suit was settled and a consent judgment recorded   following the adoption of a surveyor’s report. According  to the applicant, that consent judgment did not contain any determination on ownership or eviction, since, she asserted, the surveyors report only verified boundaries of   the subject parcels of land.

3. The applicant deposed that a title deed in respect of title Number West Pokot/Chepkono/694  was issued to her     on 13th October 2003 and that she has lived on that property since 1981; that the issue before the High Court related to boundaries and neither party prayed for eviction; that in May 2015 she became aware that her titleNumber West Pokot/Chepkono/694 had been nullified by the Land Registrar on 30th January 2009; and that an eviction order issued against her did not originate from the decree issued by the court.

4.  She urged that an eviction order issued by the Judge on  22nd October 2014 did not arise from the judgment and  therefore lacked legal basis. She stated that she is illiterate and although she was represented by counsel, she was  not properly advised of the ramifications of the consent  judgment or of her right to appeal.

5.  Opposing the application, learned counsel for the respondent, C.K. Yano, referred us to his replying affidavit sworn in opposition to the application in which   he deposes that the suit in the lower court, being Kitale  High         Court Civil Case No. 5 of 2006 was instituted by the applicant seeking an order for the District Surveyor,   West Pokot to rectify the boundaries between plots   51,52 and 54; that the parties recorded a consent order   on 20th February 2014 in which they agreed that the   District Surveyor, Trans Nzoia/West Pokot should   ascertain the owners, acreage and occupation of the land   parcels known as Title Numbers West Pokot/Kapsait/51;  West Pokot/Kapsait 783; West Pokot/Kapsait 54 and    West Pokot/Kapsait 694; that the surveyors report in that    regard was filed and adopted by the parties as a consent   judgment   of the court on 7th April 2014; that the   applicant was represented by counsel in the entire process; that the applicant failed to disclose that on 5th November 2014, she filed a notice of appeal dated 29th  October 2014 by which she and her co-plaintiff intimated  that they were dissatisfied with the ruling of the High    Court given on 22nd October 2014 and intended to appeal   that decision.

6.  According to counsel, the applicant did not give any good   reason why the present application was filed as late as  February 2016 when the decision to be challenged was  made about two years earlier; that considering the decision of 4th April 2014 from which the applicant  intends to appeal was made by consent, the present       application is an abuse of the process of the court; and   the applicant has not informed the court what came of         the notice of appeal filed on 5th November 2014.

Determination

7.  I have considered the application and the submissions by  counsel. Rule 4 of the Rules of the Court under which the  applicant has moved the Court provides that:

“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”

8.  An application for extension of time involves the exercise of judicial discretion. Waki, JA summarized the principles applicable in exercising such discretion in FakirMohamed v Joseph Mugambi & 2 others [2005]        eKLR where he stated:

“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors: See Mutiso vs Mwangi Civil Appl. NAI. 255 of 1997 (UR), Mwangi vs Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs Murika M’Ethare & Attorney GeneralCivil Appl. NAI. 8/2000 (UR) and Murai v Wainaina (No 4) [1982] KLR 38. ”

9. What then are the circumstances in this case? There are two orders against which the applicant intends to appeal.  The first is the decree given by the court on 7th April   2014 on the basis of a consent judgment entered into by the parties in which they agreed to adopt a surveyor’s report as an order of the court. Other than the assertion  by the applicant that she is illiterate, there is no reason  given why a notice of appeal was not filed within the required period of time after the decree was given on 7th  April 2014 or indeed why the present application was not    made until 23rd February 2016. That is a delay of almost two years that has not been explained at all.

10. As for the assertion that that applicant is illiterate, the record shows that the applicant was represented by         counsel all through in the High Court having initially been  represented by the firm of Risper Arunga & Co advocates and subsequently by the firm of Simiyu Wafula & Co  Advocates.

11. Furthermore, under Section 67(2) of the Civil Procedure Act, Cap 21 of the Laws of Kenya, no appeal shall lie from  a decree passed by the court with the consent of the parties.

12. The applicant also intends to appeal against a second order made on 22nd October 2014. Based on the       attachments to the applicant’s application, the High Court made an order on 22nd October 2014 that “Cheptula Tongelach, the respondent to vacate from and deliver  Land Parcel No. West Pokot/Kapsait/694 to the applicant,    Jackson Chamir, and in default she be evicted therefrom.”  That order was premised on an application dated 19th   August 2014(which is however not part of the record before me) that is recited in the order. All the parties, it would appear, were heard on that application. Also  exhibited is an “Eviction Order” given on 22nd October 2014 commanding the Officer Commanding   Police Station, Kapenguria Police Station to “evict and  remove the said Cheptula Tongelach, her servants, agents, dependants or anyone claiming through her from the said  Land Parcel No. West Pokot/Kapsait/694. ”

13. On 5th November 2014, the applicant lodged a notice of  appeal dated 29th October 2014 with respect to the order given on 22nd October 2014. That notice of appeal is exhibited by the respondent in its replying affidavit. Quite apart from the fact the delay in seeking leave is not explained, to allow the present application would result in  two notices of appeal with respect to the same decision. That would be untenable.

14. The overall effect of the foregoing is that the application before me is devoid of merit. I dismiss it in its entirety     with costs to the respondent.

Orders accordingly.

Dated and delivered at Eldoret this 25th day of November, 2016.

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

I certify that this is a true

copy of the original.

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DEPUTY REGISTRAR