Mungela & 6 others v Hinzano & another [2024] KEELC 14052 (KLR)

Mungela & 6 others v Hinzano & another (Enviromental and Land Originating Summons 246 of 2014) [2024] KEELC 14052 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 14052 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Enviromental and Land Originating Summons 246 of 2014

EK Makori, J

December 11, 2024

Between

Japhet Kahindi Mungela

1st Plaintiff

Charo Kahindi Mungela

2nd Plaintiff

Ali Kahindi Mungela

3rd Plaintiff

Albert Mungela

4th Plaintiff

Kambi Masha

5th Plaintiff

Kadzitu Kombe

6th Plaintiff

Katsele Ali

7th Plaintiff

and

Kitsao Ngonyo Hinzano

1st Defendant

Harrison Kombe

2nd Defendant

Ruling

1. The Applicant seeks to extend the time to re-file the Notice of Appeal out of the time required to appeal under Section 7 of the Appellate Jurisdiction Act.

2. The Applicant avers that on the 6th of June 2022, the court dismissed an application to set aside orders dismissing this suit for want of prosecution and now approaches this Court to enlarge the time to file a Notice of Appeal to the Superior Court out of time.

3. The application is opposed. The Respondent's replying affidavit, which contests the application and raises specific points of opposition, contends that no reasons are provided for the delay. The Applicant, Japhet Kahindi, long died and could not possibly swear the affidavit in support of the application.

4. I directed parties to canvass the application through written submissions. The Respondent complied, but the Applicant did not. I framed the issues for this Court's determination as whether to enlarge the time to lodge a Notice of Appeal and who should bear the costs of the current Application.

5. In Njoroge v Kimani (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling), a case with similar circumstances, Mativo JA placed the test for enlargement of time as follows:“Rule 4 of the Court of Appeal Rules, 2022 provides: -"The court may, on such terms as may be just, by order, extend the time limited by these Rules, or by any decision of the court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act and a reference in these Rules to any such time shall be construed as reference to that that time as extended." 10. The main reason offered by the applicant is that the delay in obtaining certified copies of the proceedings and the judgment. The question here narrows to whether the delay is excusable. Excusable delays are delays that are unforeseeable and beyond the control of the party. Non- excusable delays are delays that are foreseeable or within the party's control. Obviously, the distinction between these two is significant in that it determines whether a party is liable for the delay.

11. In deciding whether sufficient cause has been shown, among the facts usually relevant are the degree of lateness, the explanation therefore, and the prospects of success. This list is not exhaustive, and each case will depend on its peculiar facts and circumstances. In National Union of Mineworkers v Council for Mineral Technology[1998] ZALAC 22 at para 10, the court held: -“The approach is that the court has a discretion to be exercised judicially upon a consideration of all facts, and in essence, it is a matter of fairness to both parties. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.”

12. In order to exercise its discretion whether or not to grant condonation, the court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. An unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success. Condonation cannot be had for the mere asking. An applicant is required to make out a case entitling him to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.

13. Equally important is that an application for condonation must be filed without delay and/or as soon as an applicant becomes aware of the need to do so. Thus, where the applicant delays filing the application for condonation despite being aware of the need to do so, or despite being put on terms, the court may take a dim view, absent a proper and satisfactory explanation for the further delays.

6. I have considered the application. No explanation has been made for the delay in filing the Notice of Appeal since the suit was dismissed on 26th October 2020 and an application to set aside the orders in a ruling dated 6th June 2022. The Respondent argues that the Applicant, Japhet Kahindi, died and could not possibly sign or depose the affidavit in support of the application. This amounts to abuse of the Court process.

7. Application dated 25th June 2024 is hereby dismissed with costs.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 11THDECEMBER 2024. E. K. MAKORIJUDGEIn the Presence of:Ms Mwangi, for the RespondentMr. Otara, for the DefendantsAbdirashid: Court Assistant