[2024] KEELC 6680 (KLR)

Kinanga & another v Nyambega (Environment and Land Appeal E009 of 2023) [2024] KEELC 6680 (KLR) (3 October 2024) (Judgment)

Neutral citation: [2024] KEELC 6680 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyamira

Environment and Land Appeal E009 of 2023

JM Kamau, J

October 3, 2024

Between

Charles Omechi Kinanga

1st Appellant

Martha Anyonga

2nd Appellant

and

Zipporah Nyambega

Respondent

Judgment

1. This is an Appeal emanating from the Ruling of the Chief Magistrate’s Court in Nyamira William Chepseba in ELC No. 30 of 2018 dated 24/10/2023. The Ruling delivered disallowed the Notice of Motion Application dated 2/5/2023 that sought leave to file a further list of documents viz a copy of a certificate of official search dated 19/9/2022 in respect of the parcel of land known as L.R. No. North Mugirango/Boisanga/3051 and another copy of the same property dated 30/4/2018, a copy of a Green Card thereof dated 19/4/2023 and a copy of the Title Deed of the same property in the name of Daniel Anyonga Kinanga issued to him on 22/11/2007. In the said Application brought under certificate of urgency of even date. The same was supported by the joint Affidavit of both Appellants sworn on the 3rd May 2023 in which both Deponents deponed that after filing their initial documents, they later realized that the aforesaid important documents were omitted from the bundle and list and that the documents were crucial in helping the court to arrive at a just Decision. The Appellants were the Defendants in the lower court while the Respondent was the Plaintiff. They did file copies of the documents in court on the same date of filing the Application which gave the court and the Respondent a clear picture of the nature of the documents.

2. By this time, the Respondent had already closed her case and on this ground and other reasons the Respondent opposed the Application vide her Grounds of Opposition dated and filed in Court on 4/7/2023. The other Grounds were that the Applicants had all along participated in the Hearing of the case as the Respondent tendered evidence, pleadings had long been closed and that the Application was meant to prejudice and embarrass or delay the fair trial of the case. From the proceedings, I note that the Plaintiff’s evidence was heard on 13/12/2022 after which the Respondent applied for an adjournment to call his second witness, the Land Registrar who was to be summoned. On 7/3/2023 the date the case was adjourned to, the Land Registrar was again not in court and was said to be out of the country. It was adjourned to 4/7/2023 and on the eve of the said date, the Respondents filed their Application for leave to file further documents. This stalled and stagnated the Hearing of the case. The parties canvassed the Application by way of filing written submissions after which the Court rendered its Ruling on 24/10/2023 dismissing the Application with costs for want of merit by giving the following reasons:-‘‘…The matter was filed on 19/9/2018 and the Plaintiff (Respondent) testified and matter adjourned on 13/12/2023. The Defendant/Applicants (Appellants) has not indicated the section of the law they are relying on – documents support in prayer (a), (b), (c) are documents which were acquired after the suit land proceeded for hearing. The Application is done too late in the day and no good reasons have been adduced………’’

3. Being aggrieved by this Ruling, the Appellants appealed to this Court advancing the following Grounds: -1. That the Trial Magistrate erred in law and fact by rejecting the documents which could enable fair Judgment in the future.2. The Trial Magistrate erred in law and fact for failure to notice that rejection of the documents for the defence is creating room for the evidence of the Plaintiff overweigh the evidence for defence unfairly3. The Trial Magistrate erred in law and fact by appreciating the grounds of opposition filed by the Respondent that the Application dated 2nd day of May 2023 is belated without realizing that after close of pleadings one can seek leave to file additional documents for fair trial and that is what we did.4. The Trial Magistrate erred in law and in fact for appreciating the submissions and opposition of the Plaintiff that the Plaintiff/Respondent had testified and closed her case where the Land Registrar had not testified and also that there is no any law which bars the defense from seeking leave because the Plaintiff alone had testified and closed.5. The Trial Magistrate erred in law and in fact for appreciating that the defense did not disclose specific order and or section or rule without noticing Order 51 Rule 10(1) of Civil Procedure Rules 2010. 6.The Trial Magistrate erred in law and fact for appreciating the submissions and grounds of opposition that the application is meant to prejudice, embarrass or delay the fair trial without disclosing the reasons.7. The Trial Magistrate erred in law and in fact by stating that the Application did not disclose reasons for delay where by the submission for the Applicant are clear that we gave our reasons.

4. They accordingly asked the Court to allow the Appeal and grant the Appellants leave to file further list of documents viz; certificate of official search dated 19/9/2022, certificate of official search dated 30/4/2018, the Green Card in respect of the parcel of land known as North Mugirango/Boisanga 3051 dated 19/4/2023 and the Title Deed for North Mugirango/Boisanga/3051 of Daniel Anyonga Kinanga given by the Land Registrar on 22/11/2007. The certificates of Title are in respect to North Mugirango/Boisanga/3051 and 3878.

5. Having appraised and reviewed the Appeal beforehand and the responses thereto and upon taking into consideration the written submissions filed by and on behalf of the respective parties, the following issues do crystalize and are thus worthy of determination:i.Whether the Application in the lower Court was made in good faith or otherwise.ii.Whether the intended Bundle of documents sought to be tendered by the Appellants will prejudice and/or occasion grave injustice to the Respondents or otherwise.iii.Whether the lower Court is seized of the jurisdiction to grant leave for the filing of the bundle of documents, which the Appellants intended to file after the Respondent had testified.

6. The provisions of the law which have been cited in the preceding paragraphs, namely Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules, 2010, articulate the timelines within which a party desirous to file bundle of documents, is obligated to do so. Be that as it may, whenever a party, for any reason fails and/or omits to file a bundle of documents, then it behooves the defaulting party to approach the Court with the requisite Application timeously and with due promptitude.

7. Given the significance of the provisions of Order 3 Rule 2 of the Civil Procedure Rules of the Civil Procedure Rules 2010, it is imperative to attach copies of such documents to the Application so as to underscore the peremptory requirements alluded to and espoused thereunder. The Appellants did so in their Application in the lower Court.

8. A party to a dispute, the Appellants herein not excepted, is indeed obligated to file and serve the bundle of documents prior to and before the Trial conference and by necessary extension, before the Trial of the suit commences. However, where there is a default to file and serve the bundle of documents [for whatever reason], then the defaulting party is enjoined to approach the court without any unreasonable and inordinate delay. In as far as the instant case is concerned, there is no gainsaying that the trial commenced on 13/12/2022 and after the Respondent testified, her Counsel applied for an adjournment and the same was to come put off for further Hearing on 7/3/2023 when she again was not ready to proceed with the case since her witness, the Land Registrar, was not available to testify and on 3/5/2023 the Appellants made the Application whose Ruling is the subject of this Appeal.

9. The Supreme Court laid down the principles governing extension of time in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR as follows: -As regards extension of time, this court has already laid down certain guiding principles. In the Nick Salat case, it was thus held:“…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 its discretion in favour of the applicant.……. “

10. 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; and,7. whether in certain cases, like election petitions, public interest should be a consideration for extending time”.

11. In George Kagima Kariuki & 2 others v George M. Gichimu & 2 others [2014] eKLR it was held that: -

12. 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 favorably exercisable.”

13. Similarly, in Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited [2015] eKLR the court was of the view that: -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 favorably exercised.”

14. Instructively, it is the explanation, if any, that would operate as the key towards opening the door of discretion. In the Ruling of the lower Court, the Trial Magistrate said:………………documents sought in prayer (a), (b), (c) are documents which were acquired after the suit had proceeded for Hearing…………”

16. To begin with, the prayer being sought in the Memorandum of Appeal is one of the court’s discretion. However, discretion must be based on reason and not contrary to the law. Why do the Appellants seek leave to file additional documents? Is it to change the substratum of the case or to help them get to the bottom of their case and prove their claim? The latter. Why did it become necessary to have the Civil Procedure Rules amended in order to file the documents that are to be used in the case? So that the trial is not by ambush. Accordingly, Order 3 Rule 2 and Order 7 Rule 5 of the Civil Procedure Rules require that copies of documents to be relied upon at the trial be filed simultaneously with the Plaint, Defence and Counterclaim. Whereas the Rules make provisions that leave may be granted by the Court to have written statements furnished at least 15 days prior to the trial conference in all the 3 instances, the Rules are silent on such extension in respect to the copies of documents. The same is then left to the discretion of the court.

17. Although the Appellants did not explain reasons for the delay, and the failure to file the intended documents in good time the Respondent, who has already testified but not closed her case, would not suffer any prejudice since she can still be recalled to testify after the documents have been filed. In any case, since the Respondent intends to call the Land Registrar as a witness in this case, the Appellants can still achieve the same purpose by asking the said witness, who is the official custodian of the original documents intended to be filed, to produce the parcel file containing them in court and whatever the Appellants intend to produce would still find their way in Court. There was therefore no good reason to lock out the Appellants’ intended documents. In any case, the trial Magistrate said that the documents were acquired after the suit proceeded for Hearing. This is then the more reason as to why the court should have applied its discretion in favour of the Appellants.

18. The upshot of the above is that this Appeal is allowed and since the documents had already been filed in court, the same are hereby deemed to be duly filed. And the Appellants are hereby granted 7 Days leave to serve the documents in the further list of documents dated 2/5/2023 and filed in Court on 3/5/2023.

19. Further, Nyamira Chief Magistrate’s Court ELC No. 30 of 2018 shall be heard by a different court. The costs of this Appeal shall abide the outcome of Nyamira CMCC ELC No. 30 of 2018 to be borne by the unsuccessful party therein.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 3RD DAY OF OCTOBER, 2024. MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: BrendaAppellants’ Counsel: Mr. OndigoRespondent’s Counsel: No appearance