[2023] KEHC 26436 (KLR)

In re Estate of Bedan Gachibiri Kathamari (Deceased) (Succession Cause 348 of 2013) [2023] KEHC 26436 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26436 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Succession Cause 348 of 2013

RM Mwongo, J

December 14, 2023

IN THE MATTER OF THE ESTATE OF LATE BEDAN GACHIBIRI KATHAMARI

Between

Cyprian Nyamu Bedan

Petitioner

and

Michael Nyamu

1st Protestor

Solomon Gachoki

2nd Protestor

Ruling

1. The applicants were the protestors in this matter while the respondent was the petitioner. The applicants filed the present motion dated 27th August, 2020 seeking orders that:i.Spent.ii.The court be pleased to extend time to the applicants within which to file their Notice of Appeal.iii.Pending the hearing of this application inter-parties, this Honourable court be pleased to order a stay of execution of its judgement dated the 29th May, 2020. iv.The court be pleased to stay execution of its judgement dated the 29th May, 2020 pending the filing and hearing of their intended appeal.v.The costs of this application be in the appeal.

2. The application is premised on the general grounds that:a.The applicants became aware of the delivery of the judgement on the 14th July, 2020 at the offices of their advocate.b.On perusing the copy of the judgement, it became clear that judgement was delivered on the 29th May, 2020 in their absence and in the absence of their counsel.c.The time allowed for filing the Notice of Appeal and record of appeal had expired.d.The 29th May 2020 was during the Covid 19 pandemic.e.The applicants are desirous of exercising their right of appeal.f.The parties agree that they have maintained the current status quo for the last 12 years and that litigation has been pending in court since 2008.

3. In their supporting affidavit the applicants averred that:i.The reason he was out of time falls squarely on his advocate in not attending the court on the judgement day, or informing him that there is a judgement against him.ii.The litigation and judgement concerns serious questions of succession, polygamy, intestacy, a will and gifts inter vivos by the deceased.iii.It is true, and admitted by the Petitioner/Respondent in his certificate of urgency dated the 12th June, 2020, that all the parties concerned have lived in the suit land for over 12 years.iv.If the judgement of this court is executed, the subdivisions and re-parcellation will affect all the 12 children of the deceased who may have to destroy their homes and relocate to another part of the suit land.

4. The respondent deposed a replying affidavit with the following major averments:i.That it is not true that the protestors were not notified on the judgment date.ii.That the court notified the advocates for the parties that it would deliver its the judgment electronically.iii.That the applicants have not explained what they were doing from May to July when they visited their advocates offices and neither have they explained the delay from14/7/2020 when they learnt of the judgment to 27/8/2020 when they filed the present application.iv.That this matter has been before the court for the last 13 years and it is only fair that the respondents be allowed to take possession of the land the court awarded them.v.That there ought to be an end to litigation.

5. Parties filed submissions as directed by the court

Applicants’ Submissions Failure of notice of delivery of judgement 6. On jurisdiction, the applicant, correctly, argues that Sec 7 of the Appellate Jurisdiction Act grants the High Court powers to extend time for giving notice of intention to appeal from a judgment of the High Court.

7. The applicant’s counsel submits that there is no evidence that they were served with a copy of the judgement as ordered. The replying affidavit does not contradict the applicant’s contention that they did not receive the notice of delivery of judgment.

8. The applicant relies on Ngoso General Contractors Ltd v Jacob Gichunge [2005] eKLR where it was stated in the Court of Appeal that:“The law under Order 20 r 1 which we have set out fully at the opening of this judgment, is explicit in terms and mandatory in tone. A judgment which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates. It is common ground in this matter that it was only the advocate of the respondent, the successful party in the judgment, who had prior knowledge of the delivery date. No apparent reason was advanced for failure to serve or attempt to serve the appellant or his advocate.”

Suffer prejudice 9. The applicants argue that respondent in his affidavit averred that they and the applicant are family; That they all live on the suit land that belonged to their late father; and therefore, the respondent has not shown any possible prejudice that he will suffer; and no prejudice will occur by the mere fact that an appeal will be filed.

Respondent’s submissions 10. The respondent submits that the applicants ignored the timelines for filing the appeal. He relies on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where it was held:Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.

Jurisdiction 11. On jurisdiction, the respondent submits that the application for extension of time ought to be filed in the Court of Appeal under Rule 5 (2) Court of appeal Rules.

Notice of judgement date 12. The respondents have deposed that when they got notified on the judgement date they instructed their advocate to notify their protestors advocate of the judgement date as a precautionary measure as served the same. Further, that the protestors have not applied for proceedings to show seriousness that they intend to proceed with any appeal expeditiously

No arguable appeal 13. The respondent submits that the court confirmed the grant and distributed the land to all deceased children equally which is the mode of distribution provided by law. There is no dispute as to whether all the parties in the case are the deceased children as they all acknowledge each other as the deceased children.

Issues for Determination 14. The issues for determination are as followsa.Whether leave should be granted to file appeal out of time.b.Whether stay of execution should be granted

Analysis and Determination 15. The applicant seeks for extension of time within which to file their Notice of Appeal. Extension of time is a discretion given to the court

16. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR the Supreme Court laid down the principles that govern the exercise of discretion in applications for extension of time as follows:“.... It is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise it’s discretion in favour of the Applicant ...We derive the following as the underlying principles that a Court should consider in exercising such discretion: -1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court;3. whether the Court should exercise the discretion to extend time is a consideration to be made on a case to case basis;4. where there is a reasonable cause for the delay, the same should be expressed to the satisfaction of the Court;5. whether there will be any prejudice suffered by the respondents if extension is granted;6. whether the application has been brought without undue delay; and7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

Reason for the delay 17. The applicants deposed that they became aware of the delivery of the judgment on the 14th July, 2020 at the offices of their advocate. The judgement was delivered on 29th May, 2020 during the Covid 19 pandemic. They submit that there is no evidence that they were served with a copy of the judgement as ordered. The replying affidavit does not contradict the applicant’s contention that they did not receive the notice of delivery of judgment.

18. On his part the respondent deposes that the applicants have not explained what they were doing from May to July when they visited their advocates offices and neither have they explained the delay from 14/7/2020 when they learnt of the judgment to 27/8/2020 when they filed the present application.

19. The record shows that the Deputy Registrar was directed on 13/5/2020 to issue notice of delivery of Judgment on 19/5/2020, and parties were to confirm whether judgement could be delivered electronically.

20. The judgment was in fact delivered on 29th May, 2020. A hand-written note on it by the Judge indicates that:“The DR to serve the counsel for the Respondent with the Judgment under order 48 rule 4 of the CPR”

21. This cements the applicants’ case that they were not aware of the date of delivery of the Judgment. I am therefore satisfied that the applicants explanation for delay is reasonable.

22. The period for filing the notice of appeal lapsed on 13th June, 2020. The period of delay is just over two months. However, the applicants cannot be said to be indolent as they followed up the matter with their advocate to find out its status. The applicants depose that their advocate is to blame for not attending court on the judgement day or informing them about the judgement.

23. In the case of Sokoro Savings and Credit Co-operative Society Ltd v Mwamburi (Civil Application E032 of 2022) [2023] KECA 381 (KLR)Korir J held:“In my view, the explanation tendered by the applicant is plausible and sufficient considering the delay period was only 43 days. Additionally, I note that the delay occasioned was as a fault of the advocate in the conduct of the matter and the applicant cannot be blamed for the delay. Without evidence to the contrary, I am unable to find carelessness in the actions of the applicant hence the explanation offered for the delay is sufficient.

24. In the present case, the delay is 74 days. There is also the explanation that these were the days when the covid pandemic was raging and movement was restricted.

Prejudice to be suffered by the respondent 25. The applicants deposed that if the judgement of this court is executed, the subdivisions and distribution will affect all the 12 children of the deceased who may have to destroy their homes and relocate to another part of the suit land.

26. The applicants submit that the respondents in their affidavit averred that they and the applicants are family. They all live on the suit land that belonged to their late father. They have not shown any possible prejudice that they will suffer.

27. On the part of the respondents, they submit that the matter has been in court for the last 13 years and it is only fair that they be allowed to take possession of the land the court awarded them.

28. This court is satisfied that since both the applicants and the respondent live on the suit land, they will not suffer prejudice in case the orders for extension of time are granted.

Disposition 29. As previously noted, the issues for determination are whether stay of execution ought to be granted, and whether leave should be granted to file the appeal out of time.

30. In light of the discussion hereabove, the court is satisfied that stay should be granted. Accordingly:a.Stay is hereby granted for ninety (90) days from today’s date.b.The applicants are also hereby allowed to file this appeal out of time, andc.the record of appeal shall be filed within forty-five (45) days of today’s date.d.Failing compliance with the timelines herein, stay shall lapse and execution may proceed.

31. Costs to abide the appeal.

32. Orders accordingly.

DATED AT KERUGOYA THIS 14TH DAY OF DECEMBER, 2023. ...............................................R. MWONGOJUDGEDelivered in the presence of:1. Chepkorir holding brief for the Protestors2. No representation for Thungu for the Petitioner3. Murage, Court Assistant