[2021] KECA 519 (KLR)

IN THE COURT OF APPEAL

AT NYERI

[CORAM: SICHALE J.A]

CIVIL APPEAL APPLICATION NO. 4 OF 2020

BETWEEN

JOHN KARANI MWENDA..................................................................APPLICANT

AND

JAPHET BUNDI CHABARI...........................................................RESPONDENT

(Being an Application for Extension of Time for giving Notice/filing Notice of Appeal and for leave to appeal out of time from the Judgment and Decree of Njoroge J delivered on 14thJanuary 2015. )

IN

(Meru Civil Appeal No.2 of 2011)

***********************************

RULING OF THE COURT

By a motion dated 24th January 2020, brought pursuant to the provisions ofRule 7 of the Appellate Jurisdiction Act, CAP 9 of the Laws of Kenya, Rule 4 of theCourt of Appeal Rules,John Karani Mwenda (the applicant)seeks the followingorders:

“1. Spent.

2. THAT the time for filing the Notice and Memorandum of Appeal in respect of the judgment made in the High Court of Kenya at Meru on 14thday of January, 2015 in Civil Appeal No.2 of 2011 be extended.

3. THAT this Honourable Court be pleased to define a time span within which to file the Record of Appeal.”

The motion is supported on the grounds on the face of the motion and anaffidavit sworn byJohn Karani Mwendawho deponedinter aliathat judgmentwas entered against him in Meru Civil Appeal No. 2 of 2011 on 14thJanuary 2015and being aggrieved and dissatisfied with the same, he wished to appeal the sameto the Court of Appeal. That, he did not appeal against the same due to reasonsset out in the affidavitinter aliathat he had all along had every intention ofappealing the decision of the High Court in a fora that he was misadvised to usemore particularly vide Constitutional Petition No. 4 of 2015, in the High Courtof Kenya at Meru and that he should not be penalized for the faults of his formeradvocates and that intended appeal was arguable and raises serious matters oflaw.

The application was opposed vide a replying affidavit sworn by JaphetBundi Chabari (the respondent)who deponedinter aliathat the applicant isbound by the provisions of the law to proffer adequate and concrete reasons forthe delay in preferring an appeal and to demonstrate the existence of a strongappeal and that a delay of 5 years was grossly inordinate and laying blame oncounsel for adopting a legal procedure that another advocate may considerinappropriate was not a sufficient reason to allow this court exercise discretionin favour of the applicant and that he stood to suffer immense prejudice as hewas now the registered owner of the suit property pursuant to a legally soundjudicial process.

It was submitted for the applicant that the discretion of a judge under Rule4 of the Court of Appeal Rules was wide and unfettered and that discretion mustbe exercised judicially and upon reason rather than arbitrary and capriciously onwhim and/or sentiment and that the fundamental factors that the court takes intoaccount while considering an application for extension of time include; length ofthe delay, reasons for the delay, the possible prejudice if any that each partystands to suffer, the conduct of the parties, the need to balance the interests ofparty who has a decision in his favour, the need to protect a party’s opportunityto fully agitate its dispute against the need to ensure a timely resolution of thedispute, the public interest issues implicated in the appeal and whether primafacie the intended appeal has chances of success or is a mere frivolity. It wasfurther submitted that the exercise of discretion depends on the circumstancesof each case and that the justice of this matter dictates that the instant applicationbe granted since the subject matter involves land which is a very emotive andsentimental issue in Kenya.

On the other hand, it was submitted for the respondent that the issue forconsideration in an application of this nature are the length of the delay, thereasons for the delay and the chances of appeal succeeding (possibly) and that theapplication under consideration lacked merit and should be dismissed with costs.

I have carefully considered the motion, the grounds thereof, thesupporting affidavit, the replying affidavit, the rival submissions by the partiesand the cited authorities.

The applicant’s motion is brought,underRule 4of this Court’s Rules. Thesaid Rule provides:

“4. Extension of time

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.”

The principles upon which this court exercises its discretion under Rule 4 arefirmly settled. The court has wide unfettered discretion whether to extend timeor not. However, in exercising its discretion the court should do so judiciously,and in accordance with the principles set out inLeo Sila Mutiso V. Rose HellenWangari Mwangi– Civil Application No. Nai 251 of 1997where the court stated;

“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.”

In the instant case it is not in dispute that the impugned judgment wasdelivered on 14thJanuary 2015 a period of over 6 years from the date of thejudgment. Certainly a period of over 6 years is no doubt inordinate. The applicantcontends that the reasons for the delay is because he was misadvised by hisformer advocates, culminating in filing of Constitutional Petition No. 41of 2017which was also dismissed and that mistake of his counsel should not be visitedupon him. With regard to the chances of the appeal possibly succeeding, theapplicant submitted that the learned judge should have dealt with the issue ofjurisdiction and find that the tribunal did not have jusdiction to deal withownership of land and order a transfer to another party. As regards prejudice, itwas submitted that the applicant had been in occupation for 26 uninterruptedyears while the respondent was not and the person to suffer prejudice most wouldbe the applicant.

Taking into totality all the circumstances in this case, I find that eventhough the delay herein is inordinate, I find that the reasons given are plausibleand with regard to the possibility of the appeal succeeding, I find the issue ofjurisdiction raised to be weighty of course mindful of the fact that I cannotcomment further on this sitting as a single bench. Similarly, I am of theconsidered opinion that the applicant would stand to suffer great prejudice asopposed to the respondent.

In the end, I find that the applicant has demonstrated and satisfied theexistence of the principles for consideration in the exercise of my unfettereddiscretion under Rule 4 of the Court as laid out inLeo Sila Mutiso case(supra), toextend time and therefore reluctantly allow the application.

Accordingly, I direct the applicant to file and serve a notice of appeal within14 from the date of this ruling and to within 60 days from the date of lodging ofthe notice of appeal to file and serve the record of appeal and in default theseorders shall stand vacated.

The costs of this motion shall abide the outcome of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE, 2021.

F. SICHALE

......................................

JUDGE OF APPEAL

I certify that this is atrue copy of the original.

Signed

DEPUTY REGISTRAR