Mbui v Muthuri (Deceased) (Suing Through) Aileen Kinya Muthuri) [2023] KEELC 22262 (KLR)

Mbui v Muthuri (Deceased) (Suing Through) Aileen Kinya Muthuri) (Environment and Land Miscellaneous Application E002 of 2023) [2023] KEELC 22262 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22262 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Miscellaneous Application E002 of 2023

CK Nzili, J

December 6, 2023

Between

Paul Muriuki Mbui

Applicant

and

Geoffrey Muthuri (Deceased) (Suing Through) Aileen Kinya Muthuri)

Respondent

Ruling

1. The court is asked to stay the execution of the ruling in Land Dispute Tribunal No. 4 of 2008 and extend leave to the applicant to appeal against the award. The grounds are contained on the face of the application and in the supporting affidavit sworn by Paul Muriuki Mbui on 17. 8.2023.

2. Briefly, the applicant avers an exparte hearing occurred, and a ruling was delivered in his absence on 17. 7.2023; he only obtained the proceedings on 17. 8.2023; his appeal has merits for the defunct land dispute tribunal had no jurisdiction on registered land. Further, he says the delay of 3 days is excusable.

3. Aileen Kinya Muthuri, the respondent, opposes the application through an affidavit dated 9. 10. 2023. The grounds are that counsel for the applicant attended the delivery of the ruling on 30. 5.2023, which was reserved for 13. 7.2023, but failed to turn up. Secondly, it is averred that the typed ruling was always available, and no proceedings had been requested for or evidence attached through letters sent to the registry. In the absence of evidence, delay cannot be attributed to the court registry. The respondent averred that the Land Dispute Tribunal judgment was not appealed against or challenged by the applicant, and that’s why the lower court adopted it.

4. To extend the time to appeal is a discretionary order bestowed to a court to be exercised judicially and on sound principles.

5. In Sigilai vs Mugambi (Civil Application No. E034 of 2023 (2023) KECA 637 (KLR) 3rd February 2023 (Ruling), the court said a delay in typing proceedings was a satisfactory explanation. On the merits of the intended appeal, the court cited with approval Athuman Nusura Jaina vs Afwa Mohamed Ramadhan C. A No. 227 of 2015 that a court must be careful to ensure that the intended appeal has merits so long as it does not appear frivolous if the issue of possession of land is raised the prejudice likely to be suffered and if the draft memorandum of appeal is attached as held in Miriam Wangui Kimani & another vs Marigi Gacheha Macharia (2009) eKLR and as Vishva Stone Suppliers Co. Ltd vs RSR Stone (2006) Ltd (2020) eKLR.

6. In Salat vs IEBC & others (2014 eKLR, the Supreme Court of Kenya set some of the considerations as that the extension of time was an equitable remedy available to deserving parties, a party has the burden to lay a basis to the satisfaction of the court, on a case to case basis; the delay has to be explained, prejudice to the opposite party has to be considered; the application has to be brought without undue delay and the public interest element has to be considered.

7. In this application, the delay was only 3 days. The explanation for the delay is due to the typing and collection of the proceedings. The draft memorandum of appeal raises arguable points as to the constitutionality of the award. The respondent has not raised any prejudice if the appeal is admitted for filing out of time.

8. As to the implication of the award and the substantial loss and damage likely to be occasioned if executed, no material has been laid before this court under Order 42 Rule 6 Civil Procedure Rules. Applying for a stay without substantiating the loss or damage is not enough.

9. For that reason, I allow prayer number 2 only. The prayer for stay is dismissed with costs. The intended appeal shall be filed within 14 days from the date hereof.File closed.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 6TH DAY OF DECEMBER 2023In presence ofMiss Mugo for Mbaabu for respondentHON. CK NZILIJUDGE