Ezekiel Shikanda Saya v Alice Abuko Makale [2021] KEELC 3930 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC MISC. CASE NO. 10 OF 2020

EZEKIEL SHIKANDA SAYA...........................................................................APPLICANT

VERSUS

ALICE ABUKO MAKALE...........................................................................RESPONDENT

RULING

The application is dated 11th May 2020 and is brought under Section 79 G of the Civil Procedure Act seeking the following orders:-

1.  That this honourable court be pleased to grant the applicant leave to lodge an appeal out of time.

2.  That costs be provided for.

It is based upon the affidavit of the applicant and the following grounds that the applicant sued the respondent vide Butere MCL & E Cause No. 48 of 2019 seeking orders of permanent injunction in respect of L.R. No. Kisa/Mundobelwa/817. That however, on the 6th day of April, 2020 the learned lower court struck out the entire suit on the grounds that the subject-matter therein was the same as that pending determination vide Kakamega High Court Succession Cause No. 415 of 2014. That the applicant, being dissatisfied with the ruling expressed a desire to lodge an appeal thereto but could not readily come up with the requisite legal fees due to the financial hardship brought about by the Covid-19 pandemic outbreak compelling him to seek alternative sources of the funds.

The applicant submitted that he sued the respondent vide Butere MCL & E Cause No. 48 of 2019 seeking orders of permanent injunction in respect of L.R. No. Kisa/Mundobelwa/817. That on the 6th day of April, 2020 the learned lower court struck out the entire suit on the grounds that the subject-matter therein was the same as that pending determination vide Kakamega High Court Succession Cause No. 415 of 2014.  That being dissatisfied with the ruling he wanted to immediately lodge an appeal but could not readily come up with the requisite legal fees due to the financial hardship brought about by the Covid-19 pandemic outbreak compelling him to seek alternative sources of the funds. That he has now been able to raise the needed legal fees but since his right of appeal against the ruling expired after 30 days, on the 6th day of May, 2020, he requires leave from this honourable court to be able to file the intended appeal. That the orders sought herein will not prejudice the respondent in a manner that cannot be compensated via costs.

This court has considered the application and the submissions therein. Section 79 G of the Civil Procedure Act deals with the time for filing appeals from subordinate courts and states:

“Every appeal from a subordinate court to the High Court shall be filed 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 satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

In the case of Paul Musili Wambua v Attorney General & 2 others (2015) eKLR, the court held that;

“…..it is now well settled by a long line of authorities by this Court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) 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.”

The applicant submitted that the ruling herein was delivered on 6th day of April, 2020. That being dissatisfied with the ruling he wanted to immediately lodge an appeal but could not readily come up with the requisite legal fees due to the financial hardship brought about by the Covid-19 pandemic outbreak compelling him to seek alternative sources of the funds. That he has now been able to raise the needed legal fees but since his right of appeal against the ruling expired after 30 days, on the 6th day of May, 2020, he requires leave from this honourable court to be able to file the intended appeal. I find that the reason for the delay is not acceptable and a good and sufficient cause for not filing the appeal in time has not been demonstrated. I find this application is not merited and I dismiss it with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 23RD MARCH 2021.

N.A. MATHEKA

JUDGE