Mary Njoki Wachira v John Mburemu Muriu [2019] KEHC 9340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

MISC. CIVIL APPLICATION NO. 173 OF 2017

MARY NJOKI WACHIRA.................................................................APPLICANT

VERSUS

JOHN MBUREMU  MURIU..........................................................RESPONDENT

RULING

1. The applicant prays for extension of time to lodge an appeal.

2. The notice of motion is dated 21st November 2017. The intended appeal is against the ex parte judgment entered on 5th September 2016; and, consequential orders of the lower court in Murang’a Chief Magistrates Civil Suit 155 of 2016.

3. There are two other prayers forinjunction pending the hearing of the appeal. As no appeal exists at the moment, prayers (c) and (d) of the motion have no legs to stand on. They are dismissed.

4. The pith of the motion is that unless leave is granted, the appeal will be lost. In the annexed draft memorandum of appeal the applicant pleads that she was condemned unheard; that she was irregularly committed to civil jail from 26th October 2016 to 24th March 2017; and, that the subsequent prohibition order and attachment of her landed properties was unlawful.

5. Those matters are set out at length in two depositions of the applicant sworn on 21st November 2017 and 30th July 2018.

6. The motion is contested by the respondent. There is a replying affidavit sworn on 19th April 2018 and grounds of opposition of even date.

7. On 21st February 2019, I heard brief submissions from the learned counsel for both parties.

8. The legal parameters in a matter of this nature are well settled. This court has wide and unfettered discretion to extend time. The discretion must however be exercised judiciously. Some of the factors to be considered include the length of delay, the reasons for the delay, the nature of the intended appeal and whether the respondent will suffer prejudice if the court extends the time. See Leo Sila Mutiso v Rose Mwangi, Court of Appeal, Nairobi, Civil Application 251 of 1997 (unreported), Nicholas Salat v IEBC & 7 others, Supreme Court, Application 16 of 2014 [2014] eKLR.

9. The amended plaint in the subordinate court is for a liquidated sum of Kshs 1,475,000. But it is also plain that the original claim was for a refund of the sum of Kshs 2,950,000 for a failed conveyance of land.

10. The respondent opted to enforce the decree by arrest of the judgment debtor. The applicant was committed to civil jail between 26th October 2016 and 24th March 2017.

11. For reasons that will become evident, it would be prejudicial to comment at length on the depositions by the parties; or, the merits of the intended appeal.

12. I am satisfied that the application has been brought after substantial delay. The applicant claims to have been disoriented by her incarceration. The application was only lodged on 23rd November 2017. She was released from custody months earlier on 24th March 2017. She had legal counsel. The delay is not well explained.

13. But in a matter of this nature, the court must pay heed to the overriding objective to do justice to the parties. There are questions of personal liberty of the subject; and, the emotive issue of land. I am well guided by Article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act.  See also Harit Sheth v Shamas Charania, Court of Appeal at Nairobi, Civil Application No 68 of 2008 [2010] eKLR.

14. On the face of it there is an arguable appeal. Unless time is extended, three matters will be swept under the carpet: First, was the applicant condemned unheard? Secondly, were proper procedures followed before the orders of committal to civil jail or the attachment of the properties? Thirdly, was the ex parte judgment valid? In a synopsis, was due process followed in execution of the decree?

15. Justice is a two way street. The respondent will be prejudiced from enjoying the fruits of the decree. Certainly, there will be delayed closure of the litigation. But I am alive that it can be abated by an award of costs. That is the justice of the case.

16. Granted those circumstances, I will exercise my discretion under section 79G of the Civil Procedure Act in favour of the applicant.

17. Prayer (b) in the applicant’s notice of motion dated 21st November 2017 is conditionally allowed: The intended appeal shall be filed and served within the next fourteen days of today’s date. All the other prayers in the motion are dismissed.

18. I grant the respondent costs in any event. If the applicant fails to lodge the appeal within the set time, the leave to appeal out of time shall automatically lapse.

It is so ordered.

DATED, SIGNEDandDELIVEREDat MURANG’Athis 14th day of March 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Ms. Maina for the applicant instructed by Rhoda N. Maina & Advocate.

Mr. Mwangi for the respondent instructed by Kirubi Mwangi Ben & Company Advocates.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.