James Masila Muli & Musya Muli v Kwale Mati,Agnes Kasyoka & Shedarck Munyalo Nzenge [2014] KECA 465 (KLR)

IN THE  COURT OF APPEAL

AT NAIROBI

(CORAM: WARSAME,  G.B.M.  KARIUKI &KIAGE, JJ.A

CIVIL  APPLICATION NO. NAI 286  OF 2013 (UR 149/2013)

JAMES MASILA MULI……………………………….…….…...1STAPPLICANT

MUSYA MULI…………………………………………….……….2NDAPPLICANT

VERSUS

KWALE MATI…………………………………………..….……1ST RESPONDENT

AGNES KASYOKA………………………..…………………..2ND  RESPONDENT

SHEDARCK  MUNYALO NZENGE………………………….3RDRESPONDENT

(being an application for leave to file and serve a record  of appeal out  of time from  the  judgment of the High  Court  of Kenya  at  Machakos  (Mwera,  J.) dated  14thMarch 2001

in

H.C.C.A No 69 of 1998)

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RULING  OF THE  COURT

On  the 30th  January 2014,  his  lordship D.K.  Maraga, J.A.,  sitting as a single  judge,considered and dismissed an application for extension of  time,  made  by  the present applicants  under  Rule  4  of the Court of Appeal  Rules,  on  the ground that the delay  in  filing  the appeal  is  over twelve (12) years, which delay is not only inordinate but unexplained.

Being  aggrieved  and  dissatisfied with  the  decision   of  the  single judge,  the applicants have sought reference of the said application before a full bench  of this court under Rule 55 (1) of the Court of Appeal Rules.

It is  the case  of  the applicants that  they were  the appellants in High   Court  Civil  Appeal  No. 69  of  1998at  Machakos in   which judgment was rendered on 14th  March 2001.  After the appeal was disallowed, they  approached Kituo  Cha  Sheria to  assist them  file  an appeal   in   this  Court.  Kituo cha   Sheria  appointed  one   Josephine WanguaWambua, Advocate, to lodge and prosecute the appeal on their behalf.  They  later  came  to learn thatno appeal  had  been lodged  by  the person appointed on their behalf  by Kituo Cha Sheria.

During  the  same   time,   the  mother  of  the  applicants  became seriously ill,  and  they were  forced totake  her  to  hospital  for  medical attention  and  treatment.  Later, the 1st  applicant got  eyesight problems, forcing him  to seek medical treatment from Thika Hospital and the Shah Free Eye and  ENT Camp,  where he was treated for bilateral cataracts in his eyes. All these factors had the cumulative effect of preventing the applicants  from filing  an  appeal  in  time,  and  with  considerable time passage from the time the High Court rendered its decision.

The application was vehemently opposed by Mr. Kimani, learned Counsel for the respondents, who submitted  that  the intended appeal has  no chance  of success  since  the land  in  dispute  is registered  in  the name  of the respondents, and  that registration  cannot be defeated.  He added  that the applicants are canvassing an  unidentified  piece of land. Mr. Kimani, Advocate,  urged  us  to consider the  length  of  delay,  the prejudice to the respondents in reopening litigation which was concluded twelve  years  ago,  and  whether  the  appeal  is  arguable  as  wellas   the reasons offered in explaining the delay.

It is clear to us that a reference to a full bench  is not an appeal and that a  single  judge  dealing with an  application  for extension  of  time exercises unfettered jurisdiction  in dealing with his discretionary powers. We appreciate  that such  discretion  is to be exercised  judiciouslyand in accordance with  the law.The   power  of  a  single  judge  is  donated  and exercised  on behalf  of the whole  Court. In essence a singlejudge enjoys the mandate and authority of the Court in dealing with an application for extension or any other application that allows  a judge of this Court to sit and decide a matter as a single judge.

The  question  for  us   to  determine  is  whether  the  single   judge exercised  his  discretion  wrongly and  in  violation of  the law  and/or in excess of his  jurisdiction. Time  and  time  again,  it has  been stated that afull bench  of this Court cannot sit, and  is not sitting, on an appeal  on the decision  of the single judge.  There  is no basis for us  to depart from the well­trodden path. We think there is no basis to do so. It is also clear that it is not enough  to demonstrate that the full bench  would  have come to a different or divergentdecision if it was first seized of the matter in the place  of the single  judge.    A full bench  cannot substitute  its discretion withthat of the single judge  as that would  amount to usurpation of the discretionary powers of the court.

No doubt, Maraga, J.A.  considered all the issues raised by the applicants and  respondents and declined to extend time. The Judge  was of the view  that  the applicants were  obliged  to file  their application in time, and/or within a reasonable period despite the intervening circumstances. The single Judge also found  that the intervening circumstances did  not warrant a  failure  to file  the appeal  in time,  or make the application for extension of time within a reasonable time.

Like  the single judge,  we find  no basis that warrants an extension of time;  there is therefore  no basis to interfere with the decision of 30th January 2014.   The material placed before us by the applicants is a clear demonstration of indolent litigants who are bent on delaying  the determination  and  conclusion of a dispute  which started  in  1993.  As a matter  of good practice and  logical sense,  a matter  that begun  in  1993 and which was determined on 14th  March 2001  must be allowed  to rest.

The applicants have contended that immediately after the decision of 14th  March 2001,  they sought the assistance  of Kituo Cha  Sheria to lodge an appeal on their behalf.  They have not stated when they sought the assistance  of  the said  institution, we  do  not know   whether  they sought Kituo’s assistance one year, two years or even five years ago.

We  have   also   considered  the  alleged   sickness  of   one   of   the applicants and  their beloved mother. As human beings,  we must extend our sympathy to the applicants for the loss of their mother during the pendency  of this saga, but without doubt, and with profound respect, we see no basis  or hinderance that that manifestly costthe applicants so as to make  them not to file  their  appeal  within the stipulated  time,  or to make  an appropriate application within  reasonable time. By any  stretch of imagination,  a  delay   of  twelve   years  is  not  only   inordinate,   but inexcusable, especially   when no  cogent  and  plausible explanation has been proffered.

In  conclusion, it is our determination that the applicants have not satisfied us that the single  judge took into account an irrelevant matter, misapprehended  the  applicable  law,   failed   to  take  into  account the reasons of the delay and/or that he was plainly wrong in his decision, so that a reasonable judicial mind, directing itself to the applicable law and evidence  could   not have  reached  such   a  decision. We  think that the single  judge addressed his mind to all the relevant and applicable law, as well as the factual issues as presented by the parties. The single  judge in our view appreciated and addressed all the grievances raised by the applicants. In the circumstances, we decline, as mandated in law,  to interfere with the said decision.

We  think  that we  have  said  enough   to  conclude this  long  and tedious  journey   which commenced    way   back   in   1993.   As  always, prudence and  reason require that litigation,  as painful as the outcome may be, must come to an end. We do so by dismissing the reference with no orders as to costs.

Dated and delivered at Nairobi this 11thday of July  2014

M. WARSAME

……………………………

JUDGE OF APPEAL

G.B.M.  KARIUKI

……………………………

JUDGE OF APPEAL

P.O. KIAGE

……………………………

JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR