John Okayana Sabatia v Barnabas Gitari Mugambi & Kaari Gitari Mugambi [2021] KEELC 4129 (KLR) | Extension Of Time | Esheria

John Okayana Sabatia v Barnabas Gitari Mugambi & Kaari Gitari Mugambi [2021] KEELC 4129 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO. 25 OF 2020

JOHN OKAYANA SABATIA..APPELLANT/APPLICANT

VERSUS

BARNABAS GITARI MUGAMBI...... 1ST RESPONDENT

KAARI GITARI MUGAMBI...............2ND RESPONDENT

(Being an Appeal  against the Ruling and Order of Hon. Ekhubi B.M (P.M) delivered at Thika on the 30th  day of April 2020 via Email)

In

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT

AT THIKA

CIVIL CASE  NO. 12 OF 2019

BARNABAS GITARI MUGAMBI.....1ST PLAINTIFF

KAARI GITARI MUGAMBI.............2ND PLAINTIFF

VERSUS

JOHN OKAYANA SABATIA.................DEFENDANT

RULING

The matter for determination is the Notice of Motion Application dated 5th June 2020, by the  Appellant/Applicant  seeking for orders against the Respondents for;

1. That  Pending the hearing and determination of this Appeal, there be a stay  of Proceedings in Thika  CMELC  Case No. 12 of  2019  Barnabas  Gitari Mugambi & Anor …Vs… John Okayana  Sabatia.

2. That the Memorandum of Appeal  filed on 5th June 2020 be deemed as properly filed within time.

3.  Strictly  in the alternative  and without prejudice  to prayer 4, leave be granted to the Appellant  to file the Memorandum of Appeal  out of time.

4.  Costs of this Application be in the cause.

5. Any  other and further relief  that this Honourable Court  may deem fit and just to grant  in the circumstances.

The Application is premised on the  grounds that  if stay orders are not granted, there is a real likelihood  that the Respondents will proceed with the hearing  and determination of  Thika CMELC Case No. 12 of 2019 and that if the both the said suit and the instant Appeal  proceed concurrently, there is a possibility of two Courts  coming up  with two  different determinations  thereby embarrassing the administration of justice.

That  the Appellant’s/Applicant’s  Memorandum of Appeal  raises serious  questions  of law regarding  the trial magistrates jurisdiction  to hear and determine  Thika CMELC Case No. 12 of 2019  and it is in the interest of justice  that the suit be stayed  pending the outcome of the present Appeal  so that this Court can pronounce itself on whether  or not  the trial  Court in Thika CMELC Case No. 12 of 2019  had jurisdiction to hear and determine  the suit. Further  that if stay orders  are not granted, the instant Application will be rendered nugatory  and a mere academic exercise .

That the Appellant/ Applicant stands  to suffer substantial  loss  if stay pending the hearing  of the Appeal  is not granted  as the Respondents  are seeking eviction orders  both in their Notice  of Motion Application and in the Plaint dated 28th November 2018. That the Appellant/ Applicant had challenged  the jurisdiction of the trial Court  to hear and determine the suit  by way of a Notice of Preliminary Objection  dated and filed on  15th August 2019,and the  Notice of Preliminary objection was argued orally  on 7th November 2019.  That the Ruling for the  Notice of Preliminary Objection  was slated for 16th January  2020.

However, the Ruling was subsequently deferred to23rd January 2020, 27th February 2020 and 26th March 2020. That on  26th March 2020, the Ruling was never delivered  due to the prevailing  Corona Virus  Pandemic  and parties were thus awaiting  for notification  by the Court  on when the Ruling would be delivered. That the Ruling was eventually delivered without notice to parties  on 30th April 2020,  via email and the same was emailed to parties on 4th June 2020. The   Appellant/ Applicant  has approached  the Court at the earliest opportune moment as soon  as he became aware of the Court’s determination  and the delay  in the Appellant  filing his Memorandum of Appeal  is not inordinate  as the same is  explainable and excusable .

In his Supporting Affidavit, John Okayana Sabatia,the Appellant/ Applicant averred  that he  had written  to the trial Court  requesting for  certified copies  of the proceedings, certified copy of the Ruling  as well as  a certified copy of the  Order emanating  from the Ruling  of the Court . Further that he had written  to the trial Court  indicating that the Ruling was delivered  via email on 4th June 2020  and not 20th April 2020,  as indicated in the Ruling.  He further averred that he has sought  the Court to find  that his Memorandum of Appeal  was filed on time  out of abundance of caution  and should the Court find that the Memorandum of Appeal was filed out of time , the Court  to grant leave to file it out of time.

The Application is opposed and  the 1st Respondent, Barnabas Gitari  Mugambi swore a Replying Affidavit on  11th June 2020, and averred that the Application is  frivolous, vexatious , a delaying tactic and  an utter  abuse of the Court’s process. He averred that he has been advised by his Advocate whose advice he believes to be true  that no interim orders were issued  at the exparte stage  because the Court  found no urgency  and merit in awarding  the orders because the Application is ill advised and bad in law.

That the Appellant/ Applicant has always sought to block  the continuity  of the suit at the lower Court  as a delaying tactic  which he is continuing to do in form  of his intended Appeal  which is grossly  out of time.  That as a successful litigant, he is entitled to enjoy  the fruits of his ruling  at the lower Court  and proceed with the hearing of the  suit in Thika  CMELC 12 of  2019  to its conclusion on merit. Further that Application after Application  only serve to waste  precious judicial time. When the  Application was brought to Court, it was not certified urgent  nor no interim orders  were granted, a clear indication that the said Application lacks merit and the time spent  by the Court dealing with the instant Application  could have been put to good use.

That his advocate has further advised him that the matter can be heard  substantively  and on merit at the lower court  and from the said Judgment  the Appellant/ Applicant  would still  have his right of Appeal and so would he. That the  Appellant/ Applicant   is well aware that he raises issues  in his Defence that can only  be adjudicated by a formal hearing. However, he is aware that he has no right  over the  land he is currently living in and  does not want to deal with the issues  on merit.  That this approach  is intended to  strip the Respondent off his rights. Further there was a Noticeon the Facebook page  of the Kenya Judiciary sometime in April,indicating that the Ruling at the lower Court was ready  and the parties listed thereon were to give their consents.  That his Advocates  on record  wrote various emails to thikacourt@court .go.ke  giving their consent on his  behalf to get  the ruling via email. Further, that  the Application dated 5th June 2020,is etched on falsehoods and it ought  not to be entertained further.

That he continues to suffer  extreme prejudice  as a litigant in the suit as since its inception  in2019, they have only dealt with unmerited  Applications by the Appellant/ Applicant and the substantive  suit remains unadjudicated,   he is deprived of his right to own property. That if the instant Application is dismissed, the Appellant/ Applicant suffers no prejudice  since all the issues raised in their pleadings  can be articulated on merit  by way of a formal hearing  at the lower court . That the draftMemorandum of Appeal, rises no triable issues  and has no  high chances of success. Further that the draft Memorandum of Appeal is pegged on technicalities  and justice cannot be defeated on  grounds of technicalities. That the Appellant/ Applicant  does not  deny the substance of the suit at Thika  CMELC 12 of 2019, and the applicant has not denied that he is trespassing on the suit property.

The Appellant/ Applicant swore a Supplementary Affidavit on 15th July 2020, and denied that the Application was a delaying tactic. He contended that he has a right to Appeal against the decision of the Lower Court.   That he had been advised by his Advocates that the trial Court cannot proceed to determine the matter as it does not have jurisdiction to proceed over a matter  filed after the lapse  of 12 years since the cause of action. That the Court fell in error by considering factual issues in the pleadings yet  it was to confine itself  to the legal issues raised  in the Preliminary Objection.  Further that he is not onFacebook nor is he aware of  any Notice on the Facebook page  and the consent referred to by the Respondents is by his Advocates. That the emails referred to   by the Respondents were never copied to his Advocates and a careful reading of the emails  annexed to the  Replying Affidavit indicates  that as at 28th May 2020, the Respondents  were still seeking  the Court to deliver the Ruling to them. That though the Ruling is dated 30th April 2020, it was emailed to the parties on 4th June 2020.

That the Ruling  having been delivered  on 4th June 2020, and  the Memorandum of Appeal  having been filed  on 5th June 2020, he urged the Court  to find that he filed his Appeal on time. That he is suffering extreme prejudice and he has incurred a lot of costs  to participate in these proceedings,  yet the proper defendant at the Court  is the  Minister  of Lands and the Honorable Attorney General. He contended that his Memorandum of Appeal raises arguable and weighty questions of law  including whether the trial Court is vested with  competent jurisdiction, if the trial Magistrate was justified  in scrutinizing the Defence and departing from  the  Notice of Preliminary Objection. That a question of whether an action is time barred  is not a technicality  as it is a question of substance  that goes to the root of the matter .

The Application was canvassed by way of written submissions which the Court has carefully read and considered.   The issues for determination are;

1. Whether the Memorandum of Appeal is properly on record

2. Whether the Appellant/ Applicant is entitled to stay of  Proceedings  Orders sought

1. Whether  the  Memorandum of Appeal is properly on record

It is the Appellant/ Applicant contention that though the  Judgment from the Lower Court is dated 30th April 2020, the parties did not receive the Judgment until  4th June 2020. To this effect, the Applicant has produced a copy of an email. Though the Respondents have tried to dispute this  fact,  the Court has seen copies of  emails from the Respondents as recent as  28th May 2020, seeking to have the Ruling supplied to  them. Though the Applicant has sought the Court’s intervention to declare that the Ruling was not delivered on 30th April 2020,  the Court’s finds that it can not  make such a declaration as there is no evidence  availed for  the Court to authoritatively make such a finding.  Therefore, this Court finds and holds that there is no basis to which it can find that the Ruling was not delivered on 30th April 2020.

However, It is  not in doubt that the Appellant/ Applicant received the  said Ruling on  4th June 2020, as evidenced by the email produced in Court.

The Appellant/ Applicant has sought for  leave to file  an Appeal out of time.  The Appeal herein was filed   on 5th of June 2020,  after a period  of 30 days had lapsed since the  Ruling was delivered. Section 75G of the Civil Procedure Act provides that:

“79G. 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 Nicholas Kiptoo Arap Korir Salat…Vs….The Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR, the Court held that:-

“............... It is clear that the discretion to extend time is indeed unfettered.

It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. “We derive the following as the underlying principles that a court should consider in exercising such discretion:-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; A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;  Where there is a reasonable [cause] for the delay, the same should be expressed to the satisfaction of the court; Whether there would be any prejudice suffered by the respondent, if extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

From the above cited authority and provisions of law, it is clear  that the decision on whether or not to  allow a party to file an Appeal out  of time is discretionary and  the Applicant needed to explain whether there is a reasonable cause for the delay. It is the Appellant’s/Applicant’s contention that   he could not file the Appeal out of time within the required 30 days as his Advocates only received the email  attaching the Ruling on 4th June 2020. The Court has seen the said email, also notes that the Respondents had not received the Ruling as at 28th May 2020as evidenced by the email  they sent to  Court.

Consequently, this Court finds and holds that there is a reasonable explanation as to why the Appellant/ Applicant had not  filed the Appeal  on time as there is no way  he could have filed an Appeal without the Ruling. The Court also takes cognizance of the fact that the stated period was within the pandemic period, wherein Courts had downscaled their activities. Further the instant Application was filed on 5th June 2020,right after the Appellant/ Applicant had received the Ruling.

The Court finds that the Applicant has laid a basis as to why it should exercise its discretion to allow  him  file an Appeal out of time. Further the court notes that the Appellant/ Applicant  had sought to have the Memorandum of Appeal filed on 5th June 2020,  declared as duly filed.  While the Court has granted the Appellant/ Applicant leave to file the Memorandum of  Appeal out of time, the Court notes that the Applicant denotes that he had already filed the said Memorandum of Appeal. If indeed the requisite fees were paid, the Court will  deem the Memorandum of Appeal as duly filed and therefore properly on record.

2. Whether the Appellant/ Applicant is entitled to stay of  Proceedings  Orders sought

The  Appellant/ Applicant has sought for stay of proceedings in the Lower Court pending the hearing and determination of the instant Appeal. It is the Applicant’s contention that if the Court does not stay the subordinates Court proceedings while the instant Appeal  is pending, there is a possibility  of two different  determinations.  The Respondents have submitted that the Applicant  wishes to  block the continuity  of the suit as a delay tactics. However, the Court notes that the  Preliminary Objection bordered on whether or not  the subordinate Court had jurisdiction to hear and determine the suit as the suit was time barred.

It is not in doubt that jurisdiction is everything and without it, a Court has no option but to down its tools.   In the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 the Court held that;

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)

Further the threshold for stay of proceedings in the in Halsbury’s Law of England,4th Edition. Vol. 37page 330 and 332, that:

“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”

“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”

With the above in mind, coupled with the fact that  it is the Jurisdiction of the subordinate Court that has been called into question, the Court finds that it would be irresponsible  for it to allow the proceedings  at the lower Court  to continue while there is a question on whether or not the said Court has  jurisdiction as the Appeal is still pending.  The issue of jurisdiction goes to the core of the matter, and it would be in the interest of justice for the Court to first determine the said issue before the subordinate Court could be allowed to  proceed with the matter as precious judicial time  will be wasted if the matter would proceed and this Court finds that the lower Court did not have jurisdiction. The Court having held that the Memorandum of Appeal  is properly  on record, it then finds that the Applicant has further satisfied it why it should exercise its discretion and allow the  prayers for stay of proceedings pending Appeal.

The Upshot of the foregoing is that this Court finds that theNotice of Motion Applicationdated 5th June 2020,ismerited and the same is allowed  in the following terms:-

1. That Pending the hearing and determination of this Appeal, there be a stay  of Proceedings in Thika  CMELC  Case No. 12 of  2019;  Barnabas  Gitari Mugambi & Anor …Vs… John Okayana  Sabatia.

2. That leave is granted to the Appellant to file the Memorandum of Appeal  out of time and the Memorandum of Appeal  filed on 5th June 2020, is  deemed as duly  filed.

3. Costs of this Application be in the cause.

It is so ordered.

Dated, signed andDelivered atThikathis4thDay of March 2021

L. GACHERU

JUDGE

4/3/2021

Lucy - Court Assistant

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic and in light of the directions issued by the Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consent. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

By Consent of ;

Mr. Mokua for the Appellant/Applicant

No appearance for the 1st Respondent

No appearance for the 2nd Respondent

L. GACHERU

JUDGE

4/3/2021