[2022] KECA 482 (KLR)

Abuya v Adoyo (Civil Application E001 of 2021) [2022] KECA 482 (KLR) (25 March 2022) (Ruling)

Neutral citation: [2022] KECA 482 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application E001 of 2021

M Ngugi, JA

March 25, 2022

Between

Peter Omondi Abuya

Applicant

and

Flora Omolo Adoyo

Respondent

(Being an application for extension of time to file and serve a Memorandum of Appeal and record of Appeal from the judgment of the Environment and Land Court at Kakamega (G. M. A. Ong’ondo J) dated 28th September 2021 in Homa Bay ELC Appeal No. 37 of 2019)

Ruling

1. The applicant has lodged the application dated 7th December 2021 asking this Court to extend the time for filing the Memorandum of Appeal and the Record of Appeal against the decision of the Environment and Land Court (ELC) in Homa Bay ELC Appeal No. 37 of 2019. The application is supported by an affidavit sworn by the applicant on 7th December 2021 and is based on the grounds set out on the face of the application. These are briefly, that the applicant did file the Notice of appeal before the ELC on 7th October 2021 and the statutory timeline for filing the Memorandum of Appeal has since lapsed.

2. It is asserted that the delay in filing the Memorandum of Appeal was not intentional but was occasioned by delay in obtaining proceedings from the first appellate court. The Memorandum of Appeal had been prepared but could not be filed without the Record of Appeal as required under Order 82 of the Civil Procedure Rules (sic). A certificate of delay had been prepared by the ELC and preparation of the proceedings was ongoing. Finally, that the appeal has high chances of success but the applicant is afraid that it might be struck off unheard, and it is in the interests of justice that the application is allowed. I observe that there is no Order 82 in the Civil Procedure Rules, nor are those Rules applicable to matters before this Court.

3. The applicant reiterates the grounds set out in the application in his affidavit in support sworn on 7th December 2021. He annexes to his affidavit a document titled ‘Certificate of Delay’ dated 2nd December 2021, purportedly issued by the Deputy Registrar of the ELC. The document states at paragraphs 2, 3 and 4 as follows:1. That the Respondent’s advocate applied for typed proceedings on the 5th of October 2021 which was within the 30 days of the decision against the Respondent.2. That however, the file could not be traced as it had been placed before the Deputy Registrar for Taxation of Costs.3. That after constant follow-up, the file was traced and the Respondent’s advocate has now filed yet another application on the 1st December 2021 requesting for proceedings.

4. The power to extend time for the taking of any act under the Court of Appeal Rules is granted under Rule 4, which provides that:“The Court may, on such terms as it thinks 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 a reference to that time as extended.”

5. The court has wide and unfettered discretion in determining whether to extend time under this Rule. In exercising the discretion however, it should do so judiciously, bearing in mind the well settled principles succinctly enunciated in the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi – Civil Application No. Nai 251 of 1997:“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this court takes into account in deciding whether to grant an extension of time are, first the length of the delay, secondly the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly the degree of prejudice to the respondent if the application is granted.”

6. The applicant avers that judgment in the ELC Appeal that he seeks to appeal against was delivered on 28th September 2021. He states that he filed a Notice of Appeal on 7th October 2021, and he has annexed a copy of the said Notice of Appeal. Under Rule 82 of the Court of Appeal Rules, he was required to file his Memorandum of Appeal and the Record of Appeal 60 days from the date of filing the Notice of Appeal. The Rule provides as follows:(1)Subject to rule 115, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged—(a)a memorandum of appeal, in quadruplicate;(b)the record of appeal, in quadruplicate;(c)…Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.(2)An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was served upon the respondent.(Emphasis added)

7. The applicant has not exhibited a copy of any letter bespeaking the proceedings before the first appellate court. He has instead annexed the document noted earlier, titled ‘Certificate of Delay’, which, with respect to the author thereof, does not meet the requirements of the proviso to Rule 82(1). In that document, reference is made to a letter dated 5th October 2021 in which the applicant allegedly applied for the proceedings, and another letter dated 1st December 2021 also alleged to have been a request for the proceedings before the ELC. None of these two documents has been exhibited. Thus, there is no evidence that the applicant ever requested for the proceedings, or that he ever served the letter or letters requesting for the proceedings on the respondent.

8. That being the case, the delay of two months from the 7th of October 2021 to the 7th of December 2021 when the present application was filed has not been explained. There being no reasons explaining the delay on the basis of which this Court could consider exercising discretion under Rule 4 in favour of the applicant, and noting that the applicant had not complied with the requirements of Rule 82(2), I find that the present application has no merit. It is hereby dismissed.

DATED AND DELIVERED AT KISUMU THIS 25THDAY OF MARCH, 2022. MUMBI NGUGI......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR