[2018] KEELC 2443 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT EMBU

MISC E.L.C APPLICATION CASE NO. 19 OF 2017

MICHAEL GICOVI NJAGI................................................................APPLICANT

VERSUS

FELISTA GATHONI NJERU..................................................1ST RESPONDENT

JOSEPH NJERU MUKUTHU................................................2ND RESPONDENT

RULING

1. By a notice of motion dated 4th December 2017 filed under certificate of urgency and expressed to be brought under the provisions of sections 1A, 1B, 3, 3A, 79G of the Civil Procedure Act (Cap 21) Order 42, Rules 1 & 2 of the Civil Procedure Rules and all other enabling provisions of the law, the Applicant sought the following orders;

a.That the honourable court be pleased to certify this application urgent and same be heard ex-parte at the first instance.

b.That the honourable court be pleased to grant the Applicant leave to appeal against the decision of the honourable court delivered on 19th December 2013 out of time and consequently the notice of appeal filed herewith be deemed to be duly filed in time.

c.That the costs of this application be in the cause.

2. The said application was based on the various grounds enumerated on the face of the motion. It was stated that the Applicant was aggrieved by the judgement delivered on 19th December 2013 in Runyenjes PMCC No 64 of 2013 and that he desired to appeal against the same. It was further stated that the Applicant was unaware of the said judgement until after expiry of the time for lodging an appeal and that the relevant court file had gone missing for a long time.

3. The Applicant further stated that the intended appeal raises valid triable issues with high chances of success and that the Respondent shall not suffer any prejudice should the said application be allowed.

4. The said application was supported by the Applicant’s own supporting affidavit sworn on 4th December 2017. In the said affidavit, he reiterated and expounded upon some of the grounds listed in his motion. He contended that the Rules required him to file a notice of appeal within 14 days and that he was unable to file such notice because he was unaware of the judgement. He also contended that the delay in filing the application for extension of time was not inordinate hence he urged the court to allow his application.

5. The Respondent filed a replying affidavit sworn on 22nd January 2018 in opposition to the said application. The Respondent contended that the Applicant was a vexatious litigant who was seeking to revive issues which had already been adjudicated upon by courts of competent jurisdiction. The Respondent stated that the issues raised herein were res judicata since they had been decided in Embu ELC Misc Application No. 17 of 2014.

6. The Respondent further opposed the application on the basis that it was defective; that the Applicant had been indolent for 4 years; that the Respondent would be exposed to prejudice and loss; and that the Applicant had not made out a case for the granting of the orders sought.

7. When the said application was listed for hearing on 1st March 2018 the parties agreed to canvass it through written submissions. Consequently, the Applicant filed his written submissions on 12th March 2018 whereas the Respondent filed his own on 1st May 2018.

8. The court has considered the Applicant’s said application, the replying affidavit in opposition thereto and the respective submissions of the parties. The main question for consideration is whether or not the Applicant has made out a case for the grant of leave to file an appeal out of time.

9. The factors to be considered in granting or declining such an application were considered in the case of Mohamed & Muigai Advocates Vs Kang’ethe & Co Advocates – NBI Civil Application No. 19 of 2004 as follows;

a.The length of the delay.

b.The reason for the delay.

c.The chances of the appeal succeeding.

d.The degree of prejudice to the Respondent.

10. The court has considered the explanation given for the delay of over four (4) years in filing the instant application for leave to file an appeal out of time. The Applicant was very evasive on the date when he came to learn of the judgement of the Magistrate’s court delivered on 19th December 2013. The evidence on record, however, indicates that between 2014 and 2017 the Applicant was engaged in challenging the said judgement delivered in Runyenjes PMCC No. 64 of 2013 in Embu ELC Misc Application No. 17 of 2014. The latter was a judicial review application in which the Applicant was seeking to quash the decree issued by the Magistrate’s court.

11. The copy of the judgement exhibited in the proceedings indicates that the application for an order of certiorari to quash the said decree was dismissed by the Environment and Land Court on or about 11th March 2016. The Applicant thereafter filed an application for review of the judgement dismissing his application for judicial review. The application for review of the judgement was subsequently dismissed by Hon Justice Boaz Olao on 19th March 2017. The court held that the Applicant had no valid reasons for review and advised that he was at liberty to file an appeal against the judgement dated 11th March 2016.

12. The one question which immediately comes to mind is this: if the Applicant was not aware of the decree issued by the Magistrate’s court at Runyenjes for a long time, what decree was he challenging in Embu ELC Misc (JR) No 17 of 2014? The court is of the view that the Applicant has not been candid and truthful in his application. The court finds that the delay of about 4 years in filing the instant application constitutes inordinate delay. The court also finds that there is no adequate or reasonable explanation for the delay.

13. Although the power of a court to grant an extension of time is discretionary, such discretion must be exercised in a judicial manner and upon reason. It cannot be based upon caprice, whim or sympathy. See CMC Holdings Ltd Vs Nzioki [2004] eKLR. In the circumstances of this case, the court is not satisfied that the Applicant has placed sufficient material before the court to enable it exercise judicial discretion in his favour.

14. The upshot of the foregoing is that the court finds no merit in the Applicant’s notice of motion dated 4th December 2017 and the same is hereby dismissed with costs to the Respondent.

15. It is so ordered.

RULING DATED, SIGNED and DELIVERED in open court at EMBU this 12TH day of JULY, 2018.

In the presence of in the presence of the Applicant in person and Ms Muthama holding brief for Mr Kahuthu for the Respondents.

Court clerk Mr Muinde.

Y.M. ANGIMA

JUDGE

12. 07. 18