[2019] KECA 686 (KLR)

IN THE COURT OF APPEAL

AT NYERI

[CORAM: KANTAI, JA IN CHAMBERS]

CIVIL APPLICATION NO. 140 OF 2018 /UR 89 OF 2018

BETWEEN

NEW MAGUMONI FARMERS

CO-OPERATIVE SOCIETY LTD....................................APPLICANT

AND

JUSTUS MUTUA MUSYOKA......................................RESPONDENT

(Being an application for extension of time to file and serve Notice and Record of

Appeal out of time from the Judgment of the High Court of Kenya

at Chuka (P.M. Njoroge, J) dated 19th December, 2017

In

CHUKA (E&L Civil Appeal No. 4 of 2017)

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R U L I N G

The applicant New Magumoni Farmers Co-operative Society Limited by aNotice of Motion brought under Rule 4 and other rules of this Court andprovisions of the Constitution of Kenya, 2010 prays in the main that I grant itleave to file and serve Notice and Record of Appeal out of time.

The respondent in the motion is Justus Mutua Musyoka.In grounds set out in support of the motion and in an affidavit of AndersonMurithiwho is the Chief Executive Officer of the applicant it is stated amongstother things that the applicant was not informed by previous advocates thatjudgment had been delivered by the High Court on 19thDecember,2017; that the applicant came to know of delivery of that judgment on1stAugust,2018when time for filing and serving Notice and Record of Appeal had lapsed;that their then lawyer had since ceased practicing and had joined the CountyAssembly of Tharaka Nithi; that an application for leave to file an appeal out oftime filed at the High Court had been dismissed; and that the applicant had madeall efforts to procure proceedings and judgment of the High Court and that therewas no inordinate delay in bringing the application.

Mr.Anderson Murithifurther depones in the said affidavit that proceedingsand judgment had been applied for in the High Court on 1stAugust, 2018and were supplied the same day; that the said application was then lodged in theHigh Court on 20th September, 2018 but was dismissed in a ruling delivered on1stOctober, 2018; and that the applicant beieves that it has an arguable appeal.

The respondent did not file an affidavit in reply.

I heard the application on 25th March, 2019 when Mr. A.G. Riunguappeared for the applicant while Mr. B.G. Kariuki appeared for the respondent.Mr Riungurelied on the grounds in support of the motion and the affidavit insupport and submitted that the applicant had problems with their former lawyerand that the lawyer was not informing the applicant of the progress of the case.According to counsel, the appeal to the High Court at Chuka should have beenon points of law only and the Judge was wrong to entertain other issues.

In opposing the application Mr Kariuki submitted that there was noarguable appeal as the Judge at the High Court had found that he had nojurisdiction in the matter. Counsel submitted further that the application wasfiled ten months after judgment which according to counsel was inordinatedelay.

I have considered the application and the submissions made.

I am being asked to excercie discretion under Rule 4 of the rules of thisCourt. Grant of such leave is discretionary and I have original jurisdiction togrant or refuse to grant leave.

There are various factors that are now agreed as the relevant factors toconsider in an application for extension of time. Those factors have beenconsidered in various pronouncements of this Court such as in the case of Mutisoversus Mwangi Civil Case No. 255 of 1997 which was a reference to the full courtfrom the decision of a single Judge. The factors to consider were recognized as:

''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: firstly, 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'' .

It was held in the case of Mwangi versus Kenya Airways Ltd [2003] eKLR 48 that:

''The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive. Rule 4 of the Court of Appeal Rules (Cap 9) gives the single Judge unfettered discretion and so long as the discretion is exercised judiciously a Judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered''.

It would therefore be noted that the list of factors to consider in an application like this one is not exhaustive. The length of delay is relevant as thereason for that delay and the chances of the intended appeal succeeding are allrelevant in an application for leave to extend time. I should also considerwhether allowing the application would prejudice the respondent amongst otherfactors.

On the issue of delay I note that judgment was delivered by the High Courtat Chuka on 19th December, 2017 and it is the applicant's case that they did notget to know about delivery of that judgment until 1st August, 2018. It is alledgedthat there was a breakdown in communication between the applicant and itsthen advocates. I note from the record that an application for extension of timewas filed at the High Court on 20th September, 2018 which aplication wasdismissed on 2nd October, 2018 and the motion before me was filed in this Courton 14th November, 2018. It would therefore appear on the issue of delay that thesame is not inordinate and it is reasonably explained.

What about the chances of the inteded appeal succeeding? It is not veryclear from the record what was the origin of the dispute between the parties.From what I can see in the judgment delivered on 19th December, 2017 there wasa dispute between the applicant and the respondent which was heard by a LandDisputes Tribunal. The applicant was unhappy with the decision of that tribunaland appealed to the Eastern Provincial Disputes Appeals Committee whichappeal was unsucceessful. The applicant then filed proceedings before the HighCourt at Chuka where various grounds were raised. The High Court consideredthe appeal and found that it had no jurisdiction to entertain the same. Thejudgment reveals a situation where the applicant was granted variousopportunities to file submissions or serve the same but there was blatantdisregard of those court orders by the applicant. The court also found that theappeal required leave before filing which leave had neither been sought norobtained. The court also found that the appeal before it had been pending beforethe High Court for nearly twelve years on account of various acts of ommissionor commission by the applicant who was the appellant.

Looking at the judgment as a whole I am not pursuaded that the intendedappeal has any chances of success.

I am also not pursuaded that the respondent would not be prejudiced by grant of leave in a situation like this one where litigation has been ongoing formany many years. I find therefore that this is not a suitable case for exercise ofmy discretion in favour of the applicant and the Motion dated 6th November,2018is hereby dismissed with costs to the respondent.

DATED & Delivered at Nairobi this 5th day of April, 2019

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR