[2019] KEELC 2604 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC MISC.APPL.NO.26 OF 2018

KYANJAU CO-OPERATIVE SOCIETY LIMITED........APPELLANT/APPLICANT

VERSUS

MIRIAM WANJIRU NGANGA...............................................................RESPONDENT

RULING

The matter for determination is the Notice of Motion application dated 12th June 2018, brought by the Appellant/Applicant expressed under various provisions of law and specifically Section 79G of the Civil Procedure Act. The Applicant has sought for the following orders:-

1) That the Appellant be granted Leave to file an Appeal out of time as per the draft Memorandum of Appeal.

2) That cost of this application be in the cause.

The application is premised on the following grounds:-

a) That the delay is not inordinate as Judgment was delivered on 17th October 2017.

b) That the Appeal is arguable and has overwhelming chances of success.

c) That no prejudice will be occasioned to the Respondent.

d) That the delay was occasioned by delay in obtaining the typed and certified copy of the Judgment.

e) That it is in the interest of justice that the orders sought maybe granted.

Further, the application is supported by the Affidavit of Michael Njuguna Njorogewho averred that he is the Chairman of the Appellant herein which is a Co-operative Society. That claim being Co-operative Tribunal Case No.382 of 2016was brought against the Applicant who was named as 1st Respondent. Further that the said case was heard and a Judgment was delivered on 17th October 2017as is evident from annexture MMN-1. He also averred that the said Judgment was not satisfactory to them but the Statutory timeline for lodging the said Appeal has already lapsed. He contended that there was delay in filing the Appeal due to the delay in obtaining the copy of the Judgment. Further that the said Judgment had to be discussed at the Board Meeting before any step could be taken and the said meeting was done in June 2018. He also contended that the Company is a Public Land buying Company and the Directors to the same are not inhouse Directors and hence the issue as to Appeal was only addressed in the June meeting. That he has been advised by his advocate on record that they have an arguable Appeal with overwhelming chances of success as envisaged by the annexed copy of Memorandum of Appeal MNN-2. That the typed proceedings and Decree took long to be provided to them and that the intended Appeal will not be prejudicial to the Respondent. He urged the Court to grant them leave to file an Appeal out of time.

The application is opposed and Miriam Wanjiru Nganga, the Respondent herein filed a Replying Affidavit and averred that her husband was Stephen Nganga Kamau Muthoga (deceased), who became a member of the Appellant in 1973 and also owned shares with the Applicant and was issued with Share Certificate No.10. Further that her husband balloted for a portion of land and he was given 0. 5 acres portion from Industrial Plot No.1596 located in Kyanjau, Thika. She further averred that her late husband was later shown her portion of land. However, upon her husband’s demise, the Appellant in total disregard of the deceased beneficiaries’ right sold the land to Kiandutu ACK Church who were not members of Kyanjau Co-operative Society and purported to re-allocate a swampy area to the deceased heirs. It was her contention that aggrieved by the decision, she filed a claim against the Appellant wherein a Judgment was delivered on 17th October 2017. Further that she applied for certified copies of Judgment and proceedings on 31st October 2017 and the certified copies of proceedings and Judgment were ready as at 25th January 2018. Further that her advocate forwarded the said Judgment to the Appellant vide a letter dated 28th March 2018, and sought for compliance. Therefore the Appellant/Applicant is not candid by stating that the delay in filing the Appeal has been occasioned by lack of typed proceedings and Judgment as the same was availed as at 25th January 2018. Further that the Applicant having been aware of the Judgment since October 2017, there was no reason given why the board could not meet and decide on the Appeal within the stipulated timeline.

It was her further contention that the draft Memorandum of Appeal is frivolous, vexatious and scandalousand ought to be struck out with costs as the Applicants’ chairman admitted the issue of swampy area and offered the Respondent two plots elsewhere. She also contended that as a successful litigant, then the estate of the deceased is entitled to the fruits of litigation and this application is unnecessary delay to justice and should be dismissed with costs. That the delay herein is inordinate, unreasonable and inexcusable and extension of time is not a right of a party but an equitable remedy that is only available to a deserving party at the discretion of the court. It was contended that the Applicant is undeserving of the equitable remedy as he has misled this Court that delay was occasioned by lack of typed proceedings which is not the case as the proceedings were available as at 25th January 2018.

Further, that the estate of the deceased will continue to suffer as they are illegally and unlawfully disposed of their late father’s land parcel. The Court was urged to dismiss the instant application.

The said application was canvassed by way of written submissions wherein the Law Firm of Kanyi Kiruchi & Co. Advocates filed their submissions on 5th December 2018,and urged the Court to allow the said application. They quoted the case of Imperial Bank Ltd (in receivership) & Another...Vs...Alnashir Propaf & Others, Civil Appeal No.395 of 2017,wherein the Court allowed the Applicant to file an Appeal out of time upon satisfaction that delay was out of factors beyond the Appellant’s control.

The Respondent’s through Wandabwa Advocates filed her submissions on 4th December 2018 and urged the Court to dismiss the said application. She relied on various decided cases among them the case of Zacharia Okoth Obado...Vs...Edward Akongo & 2 Others (2014) eKLR, where the Court held that:-

“Rules and timelines serves to make the process of judicial adjudication and determination fair, just and certain and even handed. Court cannot aid in the bending or circumventing rules and shifting goal posts, for while it may seem to aid one, it unfairly harms the innocent party who strives to abide by the rules”.

This Court has now carefully considered the intant Notice of Motion application and the annextures thereto. The Court has further considered the rival written submissions, the cited authorities and the relevant provisions of law and makes the following rendition:-

There is no doubt that the Respondent herein had file Co-operative Tribunal Case No.382 of 2016, wherein she claimed against the Applicant herein. Further, there is no doubt that a Judgment was entered on 17thOctober 2017. and among the orders issued were that:-

“The Claimant should get the ¼ acre offered by the 1st Respondent and should also retain the small portion left after the Church took over their land”.

It is also evident since the claim was filed at the Co-operative Tribunal, the parties were bound by the Co-operative Societies Act. Under Section 81 of the said Act, it provides that whoever is aggrieved by any order of the Tribunal may within 30 days of such order appeal against such order to the High Court.

The Judgment herein having been issued on 17th October 2017, then the 30 days expired on or about 17th November 2017. The Applicant did not appeal against the said Judgment within the stipulated time. It has now filed this application for Leave to file Appeal out of time.

Section 79(G) of the Civil Procedure Act is very clear Leave of Court should be sought when a party wishes to file Appeal out of time. It provides;-

“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 [Rev. 2012] Civil Procedure CAP. 21 C17 - 35 [Issue 1] 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”.

In considering whether to grant such Leave or not, the Court should be guided by the following principles:-

a) Whether the delay was inadvertent and excusable.

b) Whether the delay is inordinate.

c) Whether the intended Appeal has merit or has overwhelming chances of success.

There is no doubt that the Applicant did not file the Appeal within the stipulated time.

The Applicant has argued that the delay was caused by the unavailability of typed proceedings and Judgment. However, the Applicant did not annex any letter showing that it applied for the proceedings and Judgment immediately after the Judgment was read. Further the Respondent has alleged that she applied for the said Judgment and by 25th January 2018, the said Judgment was available. Indeed the certified copy of the proceedings and Judgment annexed to the Applicant’s application shows that they were available as at 15th January 2018.

Further, the Applicant has alleged that its Board needed to sit and then give directions on whether to appeal or not and that the said sitting was done in June. However, no tangible reasons were given as to why the Applicant’s Board could not meet immediately after the Judgment was pronounced to give directions on the said Appeal.

The Court has gone through the proceedings and has noted that the Applicant through its Chairman Micheal Njuguna Njoroge testified that it was its Surveyor who allocated the Claimant (Respondent herein) a swampy area. He further testified that the society was ready to give the Claimant the two plots which are not in a swampy area.

The Judgment delivered by the tribunal was to the effect that the Applicant should give the Respondent the ¼ acre as testified by the Applicants witness. Therefore the determination arrived by the tribunal was not far fetched but within the confines of the evidence adduced by the Applicant’s witness. Therefore this Curt finds that the Appeal has no overwhelming chances of success.

The delay by the Applicant is not excusable or inadvertent but inordinate much as the Applicant has a right to file the Appeal, it squandered its opportunity by failing to file the Appeal on time. The Respondent was the successful litigant and should be allowed to enjoy the fruits of her Judgment. The Court will be guided by the holding by the Supreme Court in the case of Zacharia Okith Obado...Vs...Edward Akongo & 2 Others (supra), where the court held that:-

“Rules and timelines serves to make the process of judicial adjudication and determination fair, just and certain and even handed. Court cannot aid in the bending or circumventing rules and shifting goal post, for while it may seem to aid one, it unfairly harms the innocent party who strives to abide by the rules”.

The Court finds that the Applicant has not convinced this Court why it did not file its Appeal on time and therefore it is not deserving of the orders sought. For the above reasons, the Court finds that the Notice of Motion application dated 12th June 2018, is not merited and the same is dismissed with costs to the Respondent herein.

It is so ordered.

Dated, Signed and Delivered at Thikathis 28th day of June 2019.

L. GACHERU

JUDGE

28/6/2019

In the presence of

Mr. Wanjohi holding brief for Mr. Kanyi for Applicant

M/S Njuru holding brief for Mr. Wandabwa for Respondent

Lucy - Court Assistant.

Court – Ruling read in open court in the presence of the above advocates.

L. GACHERU

JUDGE

28/6/2019