[2024] KEELC 6567 (KLR)

Murungi v Attorney General & 2 others (Environment and Land Constitutional Petition E007 of 2023) [2024] KEELC 6567 (KLR) (2 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6567 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Constitutional Petition E007 of 2023

CK Nzili, J

October 2, 2024

Between

Isaiah Murungi

Appellant

and

The Attorney General

1st Respondent

Deputy County Commissioner – Igembe Central

2nd Respondent

Martin Gitonga Muthee

3rd Respondent

Ruling

1. Before the court is an application premised on Order 50 Rule 6 of the Civil Procedure Rules. The applicant is seeking an enlargement of time for him to file a notice of appeal out of time. The grounds on the face of the motion and the affidavit sworn on 26. 6.2024 are that; the petition was dismissed on 22. 5.2024, the delay is not unreasonable or inordinate; the appeal has a high chance of success and that the proposed respondents shall not suffer any prejudice if the orders sought are granted.

2. Similarly, the applicant avers that upon review of the judgment, he found that the decision by the Minister had two conflicting dates. He thus instructed his advocate to file an appeal, but the 14-day period had lapsed.

3. Opposing the motion, the 3rd respondent, in the grounds of opposition dated 25. 7.2024, avers that the decision of the Minister was served on the applicant before the judgment; the applicant has neither sought for leave to file the memorandum and record of appeal out of time, nor has he annexed draft copies of the same and a draft notice of appeal. Further, the 3rd respondent avers that the applicant was represented by an advocate when the judgment was issued and that the delay is not explained.

4. In written submissions dated 4. 7.2024, the 3rd respondent submits that the application is based on the wrong provisions of the law; the sixty days period to file the record of appeal has since lapsed; litigation must come to an end; the issue of the dates is new and was not introduced at trial. Reliance was placed on Turea Limited T/A Dr Martress vs Ali Mohamed (2022) KECA 1271 (KLR).

5. Order 50 (6) of the Civil Procedure Rules relates to enlargement of time where the time has been fixed or by summary notice and order of the court it states thus:-.“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time…”

6. That being so and as rightly observed by the respondents, the operative law is Section 7 of the Appellate Jurisdiction Act which provides;-“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired…”

7. Kenya Airports Authority & Another vs Timothy Nduvi Mutungi, Court of Appeal, Civil Application No. Nai 165 of 2013 (UR 113/2013) (2014) eKLR, Githinji JA, held that an application for an extension of time for lodging a notice of appeal filed in the High Court was competent and the court ought to have determined the same. See also Jayne Nyagoha Emisembe vs Nairobi County Branch (KUPPET) [2019].

8. From the above provision and decisions, it flows that this court power to extend the time within which a party can give notice of their intention to appeal. However, such discretion is not to be exercised whimsically, but ought to be based on sound judgment and consider the totality of both facts and law.

9. Further, in Thuita Mwangi vs Kenya Airways Ltd [2003] eKLR, the Court of Appeal held that the court should first consider the length of the delay; reasons for the delay; the chances of the appeal succeeding and the degree of prejudice to the respondent if the application is granted. And any other relevant factors. See Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, (Civil Application No. Nai 255 of 1997) (unreported).

10. In this application, the delay is for about one month, which the applicant states was the time within which she received the judgment, read and discovered the alleged anomaly in the dates, and then gave instructions. There are no draft copies of the memorandum or notice of appeal attached to the affidavit in support.

11. The 3rd respondent has not demonstrated the prejudice it stands to suffer if the orders are granted. In weighing the rights of the parties, the applicant stands to suffer more prejudice if his right to appeal is curtailed at this point.

12. Similarly, this being a constitutional petition and guided by Article 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, this court allows the application.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 2ND DAY OF OCTOBER, 2024In presence ofC.A KananuNo appearanceHON. C K NZILIJUDGE