Nkonge & another v Alitu [2023] KEELC 15944 (KLR)

Nkonge & another v Alitu (Environment and Land Miscellaneous Application E032 of 2022) [2023] KEELC 15944 (KLR) (8 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15944 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Miscellaneous Application E032 of 2022

CK Yano, J

March 8, 2023

Between

David Nkonge

1st Applicant

Erick Mbaya

2nd Applicant

and

Mwenda Samuel Alitu

Respondent

Ruling

1. The application for consideration is the notice of motion dated July 18, 2022 and filed on September 21, 2022. The application is stated to be brought pursuant to Section 79G of the Civil Procedure Act, Order 50 of the Civil Procedure Rules, Article 159 (2) (d) of the Constitutionand all other enabling provisions of the law.

2. In the application, the applicants seek for orders-:1. Spent2. That this Honourable court be pleased to grant the applicants leave to appeal out of time against the whole judgment of Hon PM Wechuli (SRM) in Tigania ELC No 10 of 2017 delivered on the 30th day of November, 2021. 3.That this Honourable court deems it fit that the draft memorandum of appeal filed herewith be deemed properly filed.

3. The application is based on the grounds on the face of the motion and is supported by the affidavits of the applicants sworn on July 18, 2022. Briefly, the applicants depose that the judgment in the lower court was delivered on November 30, 2021 and on December 9, 2021, the applicants made requisite payments for the certified copy of the judgment and proceedings of the trial court with a view to prepare for an appeal, but it was not until March 3, 2022 that the said documents were issued to the applicants. Therefore, the applicants attribute the delay in not filing appeal within time to the delay in processing and issuance of the certified copies of the judgment and proceedings. The applicants have annexed a copy of the judgment, a copy of the court receipt issued on December 9, 2021 and a copy of the draft memorandum of appeal.

4. It is the applicants’ contention that they have raised a good and sufficient cause for failing to appeal within time and that the intended appeal has high chances of success.

5. The application is opposed by the respondent who filed a replying affidavit sworn on October 7, 2022 and a further replying affidavit sworn on October 24, 2022. It is the respondent’s contention that the applicants have not explained why they never filed the memorandum of appeal since November, 2021 arguing that the application is an afterthought. That it is upon implementation of the decree or order of court that the applicants decided to appeal. The respondent states that the memorandum of appeal exhibited has no chances of success since they do not claim ownership of the suit land.

6. The respondent further states that the application is not brought in good faith since on October 8, 2022, the applicants with others attacked the respondent’s workers and chased them out of the suit land. The respondent has annexed a police abstract. That the applicants proceeded to damage the respondent’s fence by uprooting the poles and cutting the barbed wire. The respondent has exhibited some photographs and receipts for the alleged damage valued at kshs 60,000/= inclusive of labour. The respondent avers that he has made an application for contempt of court orders and states that the applicants have not approached this court with clean hands as they have also planted on the land. The respondent urged the court to dismiss the application with costs.

7. The application was canvassed by way of written submissions. In their submissions dated October 31, 2022 and filed on November 2, 2022 through the firm of Maitai Rimita & Co. Advocates, the applicants cited the provisions of Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The applicants counsel submitted that the principles on the enlargement of time to file an appeal are well settled in law and practice and relied on the case of Dilpack Kenya Limited v William Muthama Kitonyi [2018]Eklr, Feroz Begum Qureshi & Another v Magambhai Patel & others (1964) EA 633, Daphne Parry v Murray Alexander Carson [1963] EA 546 and argued that there is no difference between the words “sufficient cause” and “good cause,” and that the same should receive liberal construction so as to advance substantial justice, when no negligence nor inaction or want of bona fides is imputed to the applicants.

8. The applicants also submitted on the principles to be considered in exercising the discretion whether or not to enlarge time and relied onFirst American Bank of Kenya Ltd Vs Gulab P Shah & 2 others (2002) 1 EA 65. Counsel for the applicants submitted that the intended appeal was not filed in time due to the delay in obtaining the typed judgment by the applicant’s advocate and that the intended appeal has high chances of success. Counsel for the applicants relied on Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] eKLR and urged the court to allow the application as prayed.

9. In his submissions dated and filed on November 21, 2022, through the firm of MMBoos Mutunga & Co Advocates, the respondent reiterated the contents of the facts in the replying affidavits.

10. I have considered the pleadings, the submissions filed as well as the authorities relied upon. The issue for determination is whether the court should enlarge time to allow the applicants to file their memorandum of appeal out of time. Section 78G of theCivil Procedure Act provides that-;“An appeal from the 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”

11. Section 95 of the same ActProvides that“where any period is fixed or granted by the court for the doing of any Act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

12. The relief sought is discretionary but the discretion must be exercised judiciously and upon defined principles of law, not capriciously or whimsically. Therefore leave to appeal out of time should only be granted where sufficient cause has been shown by the applicant to the satisfaction of the court.

13. The appellants claim that the delay in filing the appeal in time was occasioned by the delay in obtaining the typed judgment by the applicant’s advocate. In this case, the judgment in the lower court was delivered on November 30, 2021. The applicants state that they made payment for a copy of the proceedings and judgment on December 9, 2021 but were not issued with the same until March 3, 2022. However, the application herein was only filed on September 21, 2022, which is a period of over six months from the date the applicants allege they were issued with a copy of the judgment and proceedings. The applicants have not given any explanation why they did not bring the application immediately they obtained a copy of the judgment and proceedings or soon thereafter. The period from March 2022 upto September, 2022 is about six months which in my view, is inordinate and the applicants were obliged to give a good and sufficient cause for such delay. In the absence of any explanation given for the delay from March 3, 2022 up to September 21, 2022, which is a period of over six months, the court, in my view cannot exercise its judicial discretion in favor of the applicants. I find that there was inordinate delay which is not explained in not filing the application for leave to file appeal out of time. In the result, this court finds that the notice of motion dated July 18, 2022 and filed in court on September 21, 2022 is without merit and the same is dismissed with costs to the respondent.

14. Orders accordingly.

DATED SIGNED AND DELIVERED AT MERU THIS 8TH DAY OF MARCH 2023. In the presence of -C.A KibagendiMwiriti holding brief for Mutunga for respondentMs Rimita for applicants.C.K YANOJUDGE