[2024] KEELC 6497 (KLR)

Kamore v Ndiritu & 2 others (Environment and Land Miscellaneous Application E001 of 2024) [2024] KEELC 6497 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6497 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment and Land Miscellaneous Application E001 of 2024

YM Angima, J

October 3, 2024

Between

John Kariuki Kamore

Applicant

and

Susan Muthoni Ndiritu

1st Respondent

Land Registrar Nyandarua & Samburu Districts

2nd Respondent

Samuel Munyi Kaburu

3rd Respondent

Ruling

A. Applicant’s Application 1. By a notice of motion dated 24. 04. 2024 brought under Section 1A, 3A, 1 – 3B of the Civil Procedure Act (Cap.21), Order 42 rule 6, Order 50 rule 6, Order 5, rule 1 of the Civil Procedure Rules, (the Rules) and all other enabling provisions of the law, the Applicant sought an extension of time to file and serve his intended appeal out of time. He also sought a stay of execution of the decree of the trial court dated 19. 12. 2023 in Nyahururu CM ELC No. 157 of 2018 pending the hearing and determination of the intended appeal.

2. The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by the Applicant, John Kariuki Kamore, on 24. 04. 2024. He contended that the failure to lodge his appeal within the prescribed period was occasioned by the delay on the part of the trial court in furnishing him with a copy of the judgment. He further pleaded that he was unable to give sufficient instructions to his advocates to lodge the appeal because he was taking care of his ailing mother. He did not, however, disclose for how many weeks or months he was taking care of his mother.

3. It was the Applicant’s case that he was in possession and occupation of a portion of the suit property hence he stood to suffer substantial loss if he were to be evicted before the hearing and conclusion of his intended appeal. He pleaded that he might be rendered homeless and destitute if he were to be evicted from the suit property hence he urged the court to grant him a stay of execution as sought in the application.

B. 1st Respondent’s Response 4. The 1st Respondent filed a replying affidavit sworn on 14. 05. 2024 in opposition to the said application. She stated that there was no reasonable explanation for the delay of 4 months in filing the instant application. It was disputed that the Applicant was occupying or cultivating the suit property. It was the 1st Respondent’s case that the only person who once occupied the suit property was the Applicant’s relative one, Richard King’ori and that since his demise no one else has ever occupied the property.

5. The 1st Respondent further contended that the Applicant had not satisfied the principles for extension of time to file an appeal out of time as well the principles for the grant of a stay of execution pending appeal. As a result, she urged the court to dismiss the Applicant’s notice of motion with costs.

C. 2nd & 3rd Respondents’ Response 6. There is no indication on record of the 2nd and 3rd Respondents having filed a response to the application. The 3rd Respondent was said to be deceased.

D. Applicant’s Rejoinder 7. The Applicant filed a supplementary affidavit sworn on 13. 06. 2024 in reply to the 1st Respondent’s replying affidavit. He stated that his advocates were only able to obtain a certified copy of the judgment of the trial court on 22. 02. 2024 hence their inability to lodge his intended appeal within the prescribed period. It was his case that he was in occupation of part of the suit property and that he had some crops growing thereon.

E. Directions on Submissions 8. When the application was listed for inter partes hearing, it was directed that the same shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the Applicant filed written submissions dated 16. 07. 2024 whereas the Respondents’ submissions were filed on 30. 08. 2024. However, the 2nd and 3rd Respondents did not file any submissions.

F. Issues for determination 9. The court has perused the notice of motion dated 24. 04. 2024, the replying affidavit in opposition thereto, the supplementary affidavit as well as the material on record. The court is of the view that the following are the key issues for determination herein:a.Whether the Applicant has demonstrated a case for extension of time to lodge an appeal out of time.b.Whether the Applicant has made out a case for the grant of a stay of execution pending appeal.c.Who shall bear costs of the application.

G. Analysis and Determination Whether the Applicant has demonstrated a case for extension of time to lodge an appeal out of time 10. The court has considered the material and submissions on record on this issue. Whereas the Applicant submitted that he had satisfied the legal requirements for extension of time to file his intended appeal out of time, the 1st Respondent contended otherwise. The Applicant seemed to blame the trial court and his ailing mother for his inability to meet the deadline for filing an appeal.

11. Section 79G of the Civil Procedure Act on filing appeals stipulates as follows:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the Appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time”

12. The factors to be considered in granting or denying an application for extension of time to lodge an appeal out of time were summarized in the case of Thuita Mwangi -vs- Kenya Airways Ltd [2005] eKLR as follows:“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, (Civil Application No Nai 255 of 1997) (unreported), the Court expressed itself thus:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled 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 reason 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”

13. The court has considered the period of delay which just over 4 months, that is between 19. 12. 2003 when the judgment of the trial court was delivered and 26. 04. 2024 when the instant application was filed. The court has considered the explanation rendered by the Applicant for the delay in filing the appeal timeously. He blamed the trial court for delaying in furnishing him with a certified copy of the judgment until 22. 02. 2024. The court is not satisfied that the Applicant has rendered a reasonable or plausible explanation for the delay. There is no legal requirement under the law for an Appellant to lodge a certified copy of the impugned judgment while filing an appeal.

14. Order 42 of the Rules, an aggrieved party is only required to file a memorandum of appeal and a copy of the decree. Order 42 rules 1 and 2 of the Rules stipulate as follows:“(1)(1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.(3)Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the Appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified.”

15. It is thus evident that a certified copy of a judgment is not required for the purpose of lodging an appeal. Even a certified copy of the resultant decree can be filed later on and it is not mandatory to file it with the memorandum of appeal. The court is thus not satisfied that the trial court was responsible for preventing the Applicant from lodging his intended appeal within the prescribed period.

16. Even if the Appellant’s excuse was to be accepted, that is, that he received a certified copy of the impugned judgment on 22. 02. 2024, there is still no plausible explanation for his failure to file the instant application for another 2 months thereafter. There is no evidence to demonstrate that the Applicant was providing any nursing care to his mother for a further period of 2 months. The material on record simply shows that his mother was admitted at AIC Kijabe hospital for 4 days, that is, between 18. 02. 2024 and 22. 04. 2024. The court is thus not satisfied that there is a plausible explanation the further delay of 2 months up to 26. 04. 2024 when the instant application was filed. It would appear that the Applicant was treating the judicial process very casually.

Whether the Applicant has made out a case for the grant of a stay of execution pending appeal 17. Since the court has declined to grant the Applicant an extension of time to lodge his intended appeal out of time, then it would follow that he is not entitled to a stay of execution of the decree pending appeal. The court is of the opinion that such a stay can only be granted under Order 42 rule 6(2) of the Rules when an Applicant has an active appeal pending. Such a stay of execution cannot exist in a vacuum.

Who shall bear costs of the application 18. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. See Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court finds no good reason to depart from the general rule. As a consequence, the 1st Respondent shall be awarded costs of the application. The 2nd and 3rd Respondents are, however, not entitled to costs since they did not participate in the hearing of the application.

H. Conclusion and Disposal Order 19. The upshot of the foregoing is that the court finds no merit in the Applicant’s application. As a consequence, the notice of motion dated 24. 04. 2024 is hereby dismissed with costs to the 1st Respondent.

Orders accordingly.

RULING DATED AND SIGNED AT NYANDARUA THIS 3RD DAY OF OCTOBER, 2024 AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS PLATFORM.In the presence of:Mr. Mugo holding brief for Mr. Ndegwa Wahome for the ApplicantMr. Kinyua Njogu for the RespondentsC/A - CarolY. M. ANGIMAJUDGE