Mwiti & 3 others v M’aritho [2024] KEELC 13867 (KLR)

Mwiti & 3 others v M’aritho (Environment and Land Appeal E086 of 2022) [2024] KEELC 13867 (KLR) (19 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13867 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Appeal E086 of 2022

CK Nzili, J

December 19, 2024

Between

Nicholas Mwiti

1st Appellant

Lucia Kathure

2nd Appellant

Josphat Muriuki

3rd Appellant

Stanley Kinyuru Kimotho

4th Appellant

and

Geoffrey M’aritho

Respondent

Ruling

1. The court is asked to extend the time to file a notice of appeal by the appellants for a second appeal after their first appeal was dismissed by this court on 6. 12. 2023. They also pray for a stay of execution of the decree of the court, which had ordered that the applicants be accorded a three-month notice to vacate the subject land, failure of which they would be evicted at their expense.

2. The applicants rely on reasons on the face of the application and in a supporting affidavit sworn on 9. 12. 2024, by Nicholas Mwiti. Equally, the applicants rely on written submissions dated 16. 12. 2024. The respondent have not filed any response despite service with the application.

3. Section 7 of the Appellate Jurisdiction Act provides that a High Court may extend the time for giving a notice of intention to appeal its judgment, notwithstanding the expiry of the time for appeal. Extension of time is not a right of a party but a discretionary power of the court, to be exercised judicially and not whimsically or capriciously. As to stay, a party seeking such relief under Order 42 Rule 6 of the Civil Procedure Rules must show sufficient cause why a stay of execution should be issued. There must be a justifiable reason why a court should order a stay of the execution.

4. In Butt vs. Rent Restriction Tribunal (1982) KLR 417, the court observed that to grant or deny a stay is a discretionary order and only exercised where there are reasonable grounds for granting the same. In RWW vs EKW (2019) eKLR, the court observed that the purpose of a stay is to preserve the subject matter in dispute so that the rights of the appellant, who is exercising an undoubted right of appeal, are safeguarded and the appeal is not rendered nugatory, but in doing so, the court must weigh the right against the successful litigant who should not be deprived of the fruits of his judgment. Therefore, the court has to ensure that no party suffers prejudice that cannot be compensated by way of damages.

5. In Charles Wahome Gethi vs Angela Wairimu Gethi (2008) eKLR, the court said that it is not enough to state that the applicants live or reside on the suit land and, therefore, they will suffer a substantial loss without going further to show the substantial loss they were likely to suffer if execution were to occur.

6. An appeal to the Court of Appeal has to be filed by dint of Rule 75 (2) of the Court of Appeal Rules within 14 days of the decision appealed against. A court may also admit an appeal out of time. The tests to be applied in determining whether to extend the time to file an appeal out of time were discussed in Nicholas Kiptoo Arap Salat vs IEBC & others (2014) eKLR. The burden is on an applicant to lay a satisfactory basis for why the application should be allowed. There must delay must be reasonable reasons for the delay. Prejudice to the opposite party must also be addressed.

7. Public interest elements, as well as the need to adhere to court and statutory timelines, are other elements to be considered. In Leo Sila Mutiso vs Rose Hellen Wangari Mwangi Civil Application No. 255 of 1997, the court observed that the length of the delay has to be considered. The excusable delay was defined in Njoroge vs Kimani (Civil Application Nairobi E049 of 2022) (2022) KECA 1188 (KLR) (28th October 2022) (Ruling). It is what is unforeseeable and beyond the control of the party. Non-excusable delay is what is within a party's control and or foreseeable.

8. In this application, the applicants have not mentioned, let alone explained, what caused the delay of close to one year since this court dismissed their appeal to apply for a stay of execution. The applicants do not blame their former lawyers for failure to notify them of the outcome of their appeal. The court record shows that the former lawyers on record filed a notice of appeal dated 8. 12. 2023. This was two days after the judgment was delivered.

9. There is no evidence that the applicants paid for the proceedings and the judgment to fast-track their appeal at the Court of Appeal. Parties have been active in the taxation of the costs including the applicants herein. It means they were aware of the outcome of the appeal. Had the applicants been following up on the matter, they would have known that the former lawyers had filed a notice of appeal. There is no evidence of the notice of appeal having been struck out or dismissed at the Court of Appeal. In the circumstances, I find the prayer for an extension of time unmerited and an abuse of the court process.

10. Turning to stay of execution, in Mukuma vs Abuoga (1988) KLR 645, the court said that substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. On security, the court in Arun C. Sharma vs Ashana Raikundlaia t/a Raikundalia & Co. Advocates & others (2014) eKLR held that its purpose its due performance of such decree as may ultimately be binding on the applicant, but was not aimed at punishing the judgment debtor. The application must also be filed without unreasonable delay. The law has not defined what is maximum or minimum delay. It all depends on the circumstances of each case, as even a one-day delay could be inordinate.

11. Applying the foregoing, the applicants have averred that a three-month eviction notice dated 13. 9.2024 was served upon them. Costs of Kshs.141,140/= have also been demanded from them. Other than a chief's letter attached as annexure NM 2 (a), there are no photographs, valuation report, or assessment to show the nature of developments on the land and the irreparable loss or damage they stand to suffer. The inordinate delay in applying for a stay since 6. 12. 2023 has not been explained. The applicants have not offered any security for the due satisfaction of the decree.

12. The delay in processing the appeal after, a notice of appeal which has not even been served upon the respondent has not been explained. Be that as it may, the court notes that the eviction notice does not comply with the law. The court directs that an appropriate notice be issued against the applicants. A stay of three months only is hereby granted.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 19TH DECEMBER, 2024In presence ofC.A KananuMr. Maheli for the applicantHON. C K NZILIJUDGE