Simon Kiprotich v James Kiptoo Chemjor [2017] KECA 777 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: MUSINGA, J.A. (IN CHAMBERS))

CIVIL APPLICATION NO. 58 OF 2016

BETWEEN

SIMON KIPROTICH ….……..…… APPLICANT

AND

JAMES KIPTOO CHEMJOR …. RESPONDENT

(Application to enlarge time within which the applicant can file and serve record of appeal against the judgment delivered by (Ombwayo, J.) dated 9th October, 2015 inEnviroment And Land Court Case No. 19 Of 2015)

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RULING

1. This is an application for leave to file and serve the record of appeal out of time.  It is brought under section 3A of the Appellate Jurisdiction Actand rule 4 of the Courtof Appeal Rules.

2. The judgment sought to be appealed from was  delivered by Ombwayo, J. on 9th October, 2015. The applicant neither provided a copy of the said judgment nor the decree that was extracted from  the said judgment.

3. In his brief affidavit in support of the application,  the applicant stated that after delivery of the judgment his advocates applied for the proceedings but they were not ready for collection until 28th June, 2016.  He annexed to his affidavit a certificate      of delay that was issued on 8th July, 2016.  It certifies that the period from 29th October, 2015 to   28th June, 2016 was required for the preparation of  the proceedings.

4. Mr. Chebii, learned counsel for the applicant, told the Court that between 28th June, 2016 when the  proceedings were ready for collection and 27th July, 2016 when the application was filed, he was waiting for the applicant to sign the affidavit that was to accompany the application.  Counsel added that the  respondent would not suffer any prejudice if the application is allowed since he is enjoying use of the    land in dispute.

5. The respondent opposed the application.  In his  replying affidavit, he deposed that there was no evidence as to when the proceedings were paid for;   the delay in filing the record of appeal had not been well explained; the applicant had not demonstrated  in any way that the intended appeal had good chances of success and therefore the application    ought to be disallowed.

6.  The principles that guide this Court in dealing with an application of this nature are well settled.  The   factors to be considered in exercising the court’s     discretion include the length of the delay, the  reasons for the delay, whether the applicant has an arguable appeal, and the degree of prejudice to the respondent if time is extended.  See FAKIR MOHAMED V JOSEPH MUGAMBI & 2 OTHERS   [2005] eKLR.

7. The applicant’s advocate wrote a letter dated 14th October, 2015 requesting for certified copies of the proceedings and judgment but the letter was not delivered to the court until 21st October, 2015. There is no evidence that any deposit was paid for the typing of the proceedings.

8. The proceedings were ready for collection on 28th June, 2016.  Between that date and 27th July, 2016 when the application was filed there is no  satisfactory explanation for the delay.  I am however prepared to accept Mr. Chebii’s explanation that he had written to his client to go to his chambers to swear the affidavit in support of the application.

9. The applicant did not, however, make any effort to demonstrate that the intended appeal has any chances of success.  Apart from disclosing that the dispute was over a parcel of land, the applicant’s   counsel did not provide any other information at all. Neither a copy of the impugned judgment nor a copy of the proposed grounds of appeal was provided to the Court.  The applicant has therefore failed to satisfy the court that he has an arguable appeal. This Court has severally held that failure to file a draft memorandum of appeal or to specify the intended grounds of appeal is fatal to an application for leave to file an appeal out of time. See ELDORET WATER AND SANITATION COMPANY LIMITED V WILSON K. TUIGONG [2016] eKLR.

10. Consequently, I am unable to exercise my discretion  in favour of the applicant, with the result that the application for extension of time is hereby dismissed with costs to the respondent.

DATED and Delivered at Eldoret this 16th day of February, 2017.

D. K. MUSINGA

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JUDGE OF APPEAL

I certify that this isa true copy of the original.

DEPUTY REGISTRAR