[2024] KECA 1032 (KLR)

Kimara & 2 others (Suing on Behalf of Kandara Residence Association) v Del Monte (K) Ltd & 4 others (Civil Appeal (Application) E163 of 2022) [2024] KECA 1032 (KLR) (28 May 2024) (Ruling)

Neutral citation: [2024] KECA 1032 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Appeal (Application) E163 of 2022

J Mohammed, JA

May 28, 2024

Between

Karira Kimara

1st Applicant

Michael Njoroge

2nd Applicant

George Njigu

3rd Applicant

Suing on Behalf of Kandara Residence Association

and

Del Monte (K) Ltd

1st Respondent

The National Land Commission

2nd Respondent

The Attorney General

3rd Respondent

County Government of Murang’a

4th Respondent

County Government of Kiambu

5th Respondent

(Being an application for extension of time to file and serve a record of appeal from the judgment of the Environment and Land Court of Kenya at Murang’a (L. Gacheru, J.) dated 28th April 2022 in Murang’a ELC Petition No. 3 of 2020 Petition 3 of 2020 )

Ruling

1. Karira Kimara, Michael Njoroge and George Njigu (the 1st and 2nd applicants) suing on behalf of Kandara Residence Association, have filed this application by way of a notice of motion dated 17th November, 2023 expressed to be brought under Section 3, 3A and 3B of the Appellate Jurisdiction Act, Rules 1(2), 4 & 49 of the Court of Appeal Rules, 2022 (this Court’s Rules) and Article 50 of the Constitution of Kenya 2010. The applicants seek orders in the main:“1. spent2. That this Honourable Court be pleased to extend the time for lodging of the Record of Appeal dated 7th December 2022 against the Judgement and Orders of the Environment and Land Court at Murang’a (L. Gicheru, J.) dated 28th April 2022 in ELC Petition no. 3 of 20203. That that the Record of Appeal dated 7th December 2022 and filed on 13th December 2022 be deemed properly on record and served within time.4. That the costs of be in the cause5. That this Honourable Court be pleased to grant any other order it deems fit.”Del Monte (K) Ltd, the National Land Commission, the Attorney General, the County Government of Murang’a and the County Government of Kiambu are the 1st to 5th respondents herein.

2. The application is premised on the grounds inter alia that: the current firm of advocates on record, Messrs Swanya & Co. Advocates, was instructed to act for the applicants on 17th of October, 2023 and upon being mapped, the applicants’ counsel was perturbed to learn that the record of appeal had been filed out of time contrary to this Court’s direction issued on 8th November, 2022. That it was also learned that the 1st respondents’ advocates had lodged an application to strike out the record of appeal for being filed and served out of time. That the acts of failure to comply with this Court’s direction to file and serve the record of appeal are entirely upon the former counsel and should not be meted out on the applicants.

3. The applicants contend further that the delay in filing the record of appeal is only five (5) days; and that the appeal raises triable issues with reasonable prospects and is deserving of its day in court as demonstrated in the Memorandum of Appeal. The applicants maintain that the application is not mala fides and will not prejudice the other parties. The applicants plead with this Court to make orders for the ends of justice and grant the orders sought in the interest of justice.

4. The application is supported by the affidavit of Karira Kimara (Mr. sworn on 17th November, 2023 where he deposed inter alia that he is authorized to swear the affidavit on behalf of the other applicants and on behalf of Kandara Residence Association. He reiterated the grounds on the face of the application and averred further that their former counsel, the firm of Okatch & Company Advocates, despite being served with the application to strike out the record of appeal neither informed or supplied them with a copy; and that the said firm also failed to take action on the filed application to strike out the record of appeal.

5. Mr. Kimara further deposed that litigants should not be punished for the mistakes of their advocates. That in reliance to Rule 4 of this Court’s Rules he prays that the instant application be allowed. The applicants maintain that the delay in filing and serving the record of appeal is not inordinate; and that the applicants were not indolent in filing the instant application.

6. The application is also supported by the affidavit (dated 17th November, 2023) of Victor Swanya Ogeto, the applicants’ advocate dated 17th November, 2023 rehashing the averments made by Mr. Kimara.

7. The application is opposed by the 1st respondent through grounds of opposition that: the application is a sham and an abuse of the court process and does not lie; that the application is premature and is seeking to restrain another application from being heard; that the application is made by a stranger to the suit; that the applicants have no locus standi; that there is no record of appeal to strike out as it was filed out of time; that the applicants’ issues of representation should not be brought or displayed to this Court for deliberation as the Court is guided by the record and rules regulating any change; and that the application is mischievously made to cure an anomaly and to hoodwink this Court.

8. The application was also opposed by the 1st respondent vide a replying affidavit dated 5th December, 2023 and an affidavit in reply dated 21st December, 2023 both sworn by Harry Odondi (Mr. Odondi) the 1st respondent’s Legal Officer. Mr. Odondi deposed inter alia that the application is incompetent and bad in law and fails on its merits as the applicants have taken an inordinately long time to file the application for extension of time; that the inordinate delay has not been sufficiently explained; and that amidst the inordinate delay, the 1st respondent continues to suffer great prejudice as the status quo orders obtained by the applicants continue to persist as long as the appeal remains undetermined.

Submissions by Counsel 9. The applicants filed written submissions reiterating the grounds on the face of the application and the contents of the supporting affidavit. The applicants relied on the Supreme Court decision of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundary Commission & others [2014] eKLR rehashed by this Court in Ngei v Kibe & Another (Civil Appeal (application) E359 of 2021) citing the case of Wasike v Swala (1984) KLR p591 that:“As Rule 4 now provides that the Court may extend the time on such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors:a.That there is merit in his appeal;b.That the extension of time to institute and file the appeal will not cause undue prejudice to the respondent; andc.That the delay has not been inordinate.”

10. It is the applicants’ contention that the respondents have not indicated what prejudice will be occasioned if the instant application is allowed.Further, that the applicants have satisfied all the tenets to merit an order for enlargement of time as set out in Wasike v Swala (supra). The applicants also relied on the case of Sokoro Savings and Credit Co- operative Society v Mwamburi (Civil Application E032 of 2022) [2023] KECA 381 (KLR).

11. The 1st respondent filed their written submissions dated 26th January, 2024 stating that they relied on the replying affidavit sworn by Harry Odondi on 5th December, 2023 and an affidavit in reply by Harry Odondi sworn on 21st December, 2023. The 1st respondent also relied on the Supreme Court decision in Nicholas Kiptoo Arap Salat (supra) on the test to be met for extension of time for filing an appeal out of time which was affirmed by the Supreme Court in Beth Muthoni Njau & anor v City Finance Bank Limited [2018] eKLR. In that case the Supreme Court added that the explanation for any delay in filing an appeal must not only be reasonable but it must be credible. It is the 1st respondent’s submission relying on the Nicholas Salat case that a party that has delayed in filing its appeal cannot file the appeal without first seeking an extension of time. To the contrary, the applicants filed the appeal outside the timelines set by this Court’s Rules and a Court Order without seeking extension of time to file the appeal. Counsel submitted that the appeal should be struck out as prayed for in the 1st respondent’s application dated 7th February, 2023 which was filed 9 months before the instant application for extension of time.

12. The 1st respondent submitted further in reliance to this Court’s decision in Andrew Kariuki Njoroge v Paul John Kimani [2022] KECA 1188 (KLR) that for a satisfactory explanation for any delay, a party must show sufficient cause by giving a full, detailed and an accurate account of the causes of delay, which test the applicants have failed. Counsel submitted that the applicants’ letter dated 17th October, 2023 annexed in the affidavit in support of the application contradicts the applicants’ statement that their appeal was filed out of time when their new advocate was mapped in the judiciary e-filing system. That the said letter shows that the applicants knew that the appeal was out of time and an application to strike it out had been filed and accordingly instructed their new advocate to file the instant application. Counsel asserted that this inconsistency raises serious doubt on the credibility of the applicants’ explanation for delay. Further reliance was placed in this Court’s decisions in Mawji v Lalji & others [Civil Appeal No. Nai. 236 of 1992 (unreported) and Itute Ingu & another v Isumael Mwakavi Mwendwa [1994] eKLR.

13. The 1st respondent contended that it has suffered great prejudice as a result of the applicant’s inordinate delay in filing the appeal and will continue to suffer prejudice if the delay is excused. The 1st respondent further submitted that regularizing the appeal will deprive the 1st respondent of its rights to reap the fruits of the judgment it obtained in Petition no. 3 of 2020.

14. The National Land Commission (the 2nd respondent) has filed their written submissions dated 26th January, 2024 describing themselves as the 1st respondent. They submit that they are not opposed to the application dated 17th November, 2023.

15. The 4th respondent filed their written submissions dated 25th January, 2024 submitting that the applicants’ application is an afterthought as the applicants waited until they were served with an application dated 2nd February, 2023 seeking to strike out the appeal for them to file the instant application. Counsel urged that the instant application should be dismissed with costs.

Determination 16. I have considered the motion, the grounds thereof, the supporting affidavit, the grounds of opposition, the applicant’s written submissions, the submissions of the 1st, 2nd and 4th respondents, the authorities cited and the law. The issue for determination is whether the application is deserving of the orders sought.

17. The discretion that I am called to exercise in the determination of this application is provided under Rule 4 of the Court of Appeal Rules which provides as follows:“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.”

18. Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving an objective decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters as follows:“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.” [Emphasis supplied].

19. The issues I am called upon to consider are both discretionary and non-exhaustive as was explained in the case of Fakir Mohammed v Joseph Mugambi & 2 Others [2005] eKLR where the court rendered itself thus:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path… As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factor.”

20. This was reiterated further in the case of Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, Civil Application No. 190 of 2019 where it was explained that:“Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suffer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity.”

21. There is no maximum or minimum period of delay set out under the law. However, the reason or reasons for the delay must be reasonable and plausible.

22. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR as was cited by the applicant, this Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily 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.”

23. Pursuant to Rule 84 of this Court Rules, the record of appeal should have been filed within sixty (60) days from the date when the notice of appeal was lodged. I am alive to this Court’s Order made on 8th November, 2022 requiring the applicants to file their record of appeal within 30 days from the date of the order. However, the record of appeal was filed on 13th December, 2022 being five (5) days late. The applicants have explained the five (5) days delay. I find that the delay is not inordinate and has been satisfactorily explained. The instant application was filed on 17th November, 2023.

24. The applicants contend that they have an arguable appeal. In Muchugi Kiragu v James Muchugi Kiragu & another Civil Application No. NAI. 356 of 1996, this Court had the following to say as regards this Court’s discretion under Rule 4:“Lastly, we would like to observe that the discretion granted under rule 4 of the Rules of this Court to extend the time for lodging an appeal is, as is well known, unfettered and is only subject to it being granted on terms as the Court may think just. Within this context, this Court has on several occasions, granted extension of time, on the basis that an intended appeal is an arguable one and that it would therefore, be wrong to shut an applicant out of Court and deny him the right of appeal unless it can fairly be said that his action was in the circumstances, inexcusable and that his opponent was prejudiced by it.” (Emphasis supplied).

25. On the degree of prejudice to the respondent, I am called upon to balance the competing interests of the parties, that is, the injustice to the applicants, in denying an extension, against the prejudice to the respondents in granting an extension. The applicants are aggrieved by the judgment of the ELC (L. Gacheru, J.) and are desirous of appealing against the said judgment out of time. In the case of Richard Nchapi Leiyagu v IEBC & 2 Others, Civil Appeal No. 18 of 2013, this Court expressed itself as follows:“The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality.”

26. From the circumstances of the application before me, the applicants have demonstrated the existence of the parameters set out in Leo Sila Mutiso (supra). The upshot is that the notice of motion dated 17th November, 2023 is allowed.

27. Accordingly, I make the following orders:a.That leave be and is hereby granted to the applicants to file and serve the record of appeal and memorandum of appeal out of time;b.That the record of appeal dated 7th December, 2022 and filed on 13th December, 2022 be and is hereby deemed as properly on record and served within time; and thatc.Costs of this application abide by the outcome of the appeal.

DATED AND DELIVERED AT NYERI THIS 28TH DAY OF MAY, 2024JAMILA MOHAMMED....................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR