[2024] KEELC 13802 (KLR)

Intraspax Freighters Limited v Gitere Kahura Investments Limited (Environment & Land Miscellaneous Case 135 of 2024) [2024] KEELC 13802 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13802 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Miscellaneous Case 135 of 2024

MD Mwangi, J

December 11, 2024

Between

Intraspax Freighters Limited

Applicant

and

Gitere Kahura Investments Limited

Respondent

Ruling

(In respect of the Notice of Motion dated 6th, July, 2024, brought under the provisions of sections 1A, 1B, 3A, and 79G of the Civil Procedure Act and article 159 of the Constitution of Kenya, 2010) Background 1. The application before me is a Notice of Motion dated 6th, July, 2024, brought under the provisions of sections 1A, 1B, 3A, and 79G of the Civil Procedure Act and Article 159 of the Constitution of Kenya, 2010. The Applicant seeks leave to file an appeal out of time against a ruling and order of Honorable S.A. Opande (Principal Magistrate) delivered on 15th May, 2024, dismissing the Applicant's Notice of Motion. application dated 18th December, 2023 in Milimani-MCELC/E536/2023.

2. The application is premised on the grounds on the face of it and the supporting affidavit of Kenneth Gitunda Kamau, sworn at Nairobi on 26th, July, 2024. The Applicant asserts that he lodged a suit before the lower court being Milimani-MCELC/E536/2023 together with an application dated 18th December, 2023, seeking temporary injunction orders to restrain the Respondent from evicting it from the property(s) known as L.R No. 5980/62, 5980/63, 5980/64, and 5980/611, pending the hearing and determination of the substantive suit. The said application was dismissed by the trial court.

3. The Applicant alleges that he had intended to appeal against the said ruling all through but the Respondent had, however, approached it proposing an amicable settlement of the entire dispute out of court. The Applicant in good faith therefore, held in abeyance any further adverse litigation against the Respondent including the intended appeal.

4. The Applicant claims that it was taken aback when it was served with an application seeking eviction orders against it by the Respondent.

5. The Applicant pleads that the time for filing the appeal lapsed during the period when it was engaging the Respondent and thought that the Respondent was genuine about the out-of-court negotiations and amicable settlement of the dispute between them. It contends that it has a valid appeal which ought to be considered on its merits. It therefore urges the court in the interest of justice to allow its application.

6. In the supporting affidavit, the deponent reiterates the grounds on the face of the application. He insists that the parties had fruitful deliberations on how to settle the matter and were in the process of drafting a consent on settlement of the dispute. The Respondent instead, served the Applicant with the application seeking eviction orders against it.

Response by the Respondent. 7. The Respondent herein opposes the application by way of a Replying Affidavit sworn by David Gitere Wakangu, at Nairobi on 30th August, 2024.

8. The deponent avers that the Applicant was a tenant of the Respondent through various lease agreements of diverse dates. The Applicant however, failed to fulfill its obligations, in particular payment of rent in terms of the provisions of the lease agreement. As at July, 2024 the rent arrears had accumulated to Kshs. 36,933,208/-.

9. The deponent further deposed that after the ruling by the Honorable Magistrate, the Applicant sought 90 days to remove their structures from the property. The Respondent's advocates objected to the 90 days sought and a consent was eventually agreed on allowing the Applicant 30 days, instead. The Applicant did not however, comply with the consent.

10. The Respondent denies that there were any negotiations with the Applicant as alleged. The Respondent asserts that they only held a meeting to discuss how the Applicant was to settle the outstanding rent arrears. The deponent terms the application before the court as a classical example of abuse of the process of court. In the unlikely event the application is to be allowed, the Respondent prays that the Applicant deposits the accumulated rent of Kshs. 36,933,208/-

Issues for Determination. 11. The sole issue for determination herein is whether the application is merited.

Analysis and determination. 12. The principles to be considered in the exercise of the court's discretion to enlarge time as sought in the application before me were elaborately laid down in the case of County Executive of Kisumu –vs- County Government of Kisumu & eight others (2017) eKLR, where the Supreme Court of Kenya stated that;“It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as: the under-lying principles that a Court should consider in exercise of 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 for 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. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

5. Whether there will be any prejudice suffered by the Respondents if the extension is granted;

6. Whether the application has been brought without undue delay; and

7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

13. I find it useful to further quote the decision by Mohammed J (as he then was) in the case of George Kangima Kariuki & 2 others (2014) eKLR, on the issue of delay where he stated that;“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

14. The reason offered by the Applicant in this case is that it was engaging in out of court negotiations with the Respondent with a view to settling the entire dispute between them amicably and out of court. The Respondent however denies that there were any such negotiations.

15. It is noteworthy that the Applicant did not provide any evidence of the alleged negotiations between it and the Respondent.

16. Of greater importance is the averment by the Respondent that the Applicant upon the delivery of the impugned ruling by the Learned Magistrate sought time to remove its structures from the suit property(s). The Respondent provided an extract from the CTS confirming that position. The Applicant did not respond to the Replying Affidavit of the Respondent to deny or contradict the averment.

17. Whereas there is no doubt that this court has the discretion to extend time as sought by the Applicant, the exercise of the discretion must be premised on the laid down principle of law. Key amongst them is that the Applicant must present a plausible and satisfactory explanation for the delay; valid and clear reasons for the delay. In this case, the reason offered is not only unsatisfactory but also invalid.

18. Whenever called upon to exercise its discretion, this court must at all times remind itself that such discretion is exercisable to give effect to the will of the legislature, or in other words, the will of the law, as explicitly stated by John Marshal, one-time Chief Justice of the US who said that;“Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.”

19. The Applicant in this case is underserving of the exercise of this court's discretion. The application is hereby dismissed with costs to the Respondents.

20. For the avoidance of any doubts, the interim orders granted in favour of the Applicant on 30th August 2024 are hereby vacated.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11THDAY OF DECEMBER, 2024. M.D. MWANGIJUDGE.In the virtual presence of:Mr. Kariuki h/b for Mr. Were for the ApplicantMs. Mbiri h/b for the RespondentJoan: Court AssistantM.D. MWANGIJUDGE.