[2015] KECA 306 (KLR)

IN THE COURT OF APPEAL

AT NYERI

(CORAM: KIAGE, J.A. (IN CHAMBERS))

CIVIL APPLICATION NO. NYR. 20 OF 2015

BETWEEN

NJAGI KABUTHIA ALIAS

CYPRIAN NJAGI IRERI.......................APPLICANT

VERSUS

RICHARD NJOGU IRERI (substituted by)

JOHN MACHARIA NJOGU IRERI……...RESPONDENT

(Being an Application for extension of time to file and serve the notice of appeal, memorandum of appeal and record of appeal out of time against the judgment of the High Court of Kenya at Embu (Ongudi J, ) dated 20th November, 2014

in

H.C.C.C. NO. 36 of 2010)

*****************

RULING

By the motion dated 20th May 2015, Njagi Kabuthia alias Cyprian Njagi Ireri (the applicant) seeks orders that this Court do extend time and grant him leave to file a notice of appeal out of time and that the notice of appeal dated 18th December 2014 be deemed to have been properly filed. The application is premised the grounds that;

“(a) the Applicant was acting in person in the High Court.

after the judgment was made on 20th day of November 2014, the applicant immediately applied for proceedings and judgment for the purposes of lodging an appeal.

(c) the applicant did not know the notice of appeal was supposed to be lodged in the court registry within seven (sic) days.

(d) the applicant was aggrieved and dissatisfied with the judgment of the High Court and he has good grounds of appeal.

(e) the mistake of not filing the notice of appeal within time was not intentional.

the Respondent shall not suffer loss that cannot be compensated by costs.

it is meet and just to allow this application.”

It is also supported by the applicant’s affidavit sworn on the same date in which he avers that he prepared a notice of appeal which he attempted, unsuccessfully, to lodge on 18th December 2014 unaware that he should have lodged it within seven(sic) days of the judgment that was rendered by the High Court on 20th November 2014. He also asserted that he has “good grounds of appeal” as shown by the copy of the memorandum of appeal he annexed which, he says, raises serious issues to be canvassed on appeal. He swears that the High Court registry finalized typing of the proceedings on 7th May 2015 and that the respondent will not suffer any prejudice that an award of costs cannot compensate.

The respondent Alphan Mugambi Njogu opposed the application and filed a replying affidavit. He pointed out that a notice of appeal should be filed withinfourteen days and asserted that the applicant has not demonstrated why he failed to do so within that time. He also attacked the copy of the notice of appeal annexed to the applicant’s affidavit as having been “backdated as there is no evidence that the Applicant ever presented it to the Court.” He also averred that the applicant’s application for extension of time was belated. Moreover, the explanation given for failing to file the notice in time, namely the delay in obtaining the typed proceedings, was unacceptable as those documents were not necessary for the filing of the notice of appeal. The respondent also pointed out that the proceedings in the record of the application are incomplete. He contended that the litigation has been in court for over 21 years and should not be further extended.

Mr. Ndana, learned counsel for the applicant elucidated on the foresaid grounds and added that even though the applicant was acting in person at the time, he promptly applied for proceedings on 2nd December 2014. The letter was copied to the respondent. Counsel also referred to the certificate of delay dated 14th May 2015 which certified that the proceedings were supplied to the applicant on 7th May 2015 and reiterated that the applicant does have an arguable appeal.

Mr. Tuli, learned counsel for the respondent announced that the application was vehemently opposed. He was unimpressed by the fact that the applicant was acting in person and quipped that the case having been in court since 1994, “the applicant has acquired some knowledge of law”.

Mr. Tuli submitted further that there was no evidence that the notice of motion dated 18th December 2014, some fourteen days after the expiry of time for filing such notice, was ever presented and rejected at the court registry as contended. He dismissed the explanation given that proceedings were being awaited since they were unnecessary for the filing of the notice of appeal and also assailed the draft memorandum of appeal as disclosing no arguable appeal. He concluded that this matter has been in court since 1994 and should not be further delayed. He cited the case of POTHIWALLA –VS-KIDOGO BASI HOUSING CO-OPERATIVE SOCIETY LTD & 31 OTHERS [2003] KLR 733.

In his reply Mr. Ndane repeated that no prejudice would be suffered by the respondent as each party still occupies the portion of the disputed land that they have always occupied and so there would be no harm in waiting a little longer for a merit determination of the dispute with finality. He urged the court to exercise its wide and unfettered discretion in favor of granting the application.

The principles upon which a single Judge of this Court exercises his discretion on a Rule 4 application for extension of time have long been settled. It is an exercise of discretion that is wide and unfettered. It is however exercisable in a judicial and judicious way not capriciously in accordance with the whims or sympathies of a judge. In the POTHIWALLA case (supra) O’Kubasu JA restated some of the matters for consideration on an application such as the one before me as follows;

“I think, it is now settled that in an application of this nature (under rule 4 of this Court’s Rules) the Court is being asked to exercise its unfettered discretion and that for an applicant to succeed he must satisfy the Court that the delay was not inordinate and that the delay has been sufficiently explained. The other issue to he considered is whether the intended appeal is arguable. Last, the applicant has to show that no prejudice would be caused to the respondent if the application to extend time is allowed. This discretion, like any other judicial discretion must be exercised judicially.”

I agree with those sentiments, as with those of Waki JA who, in Nyeri Civil Application No. 22 of 2015,PETER NDIRITU MUHUHU & ANOR –VS- ESTHER WAIRIMU NDUNGU listed some of the factors for consideration as;

“The length of delay;

The reasons for the delay;

Whether the applicant has an arguable appeal;

The degree of prejudice to the other party if time is extended;

The public importance of the matter in appropriate cases;

Generally the requirements of the interest of justice under Article 48 of the Constitution [which speaks to access to justice which should not be impeded]”.

Bearing those factors in mind, I note that although the notice of appeal

was not filed within the time prescribed by the Rules of Court, the applicant did evince a desire to pursue his appeal quite timeously when he wrote a letter bespeaking the proceedings and made payment of a deposit for the same. He was at the time unrepresented and while that circumstance alone does not justify non-compliance with the time lines prescribed by the Rules, I consider it to be just and reasonable that I should view favorably the efforts made and the substantial compliance achieved. The applicant has indicated that he did prepare a notice of appeal dated 18th December 2014 but that the same was rejected at the Registry for being out of time. Whereas the respondent’s counsel scoffs at that explanation, I find it to be plausible enough and if it is accepted, then I would not hold it against the applicant that he was unable to file the notice of appeal after 18th December 2014 until he made the current application. I therefore find the delay not to be inordinate and the explanation given satisfactory.

More important is the fact that no real prejudice is alleged or at all likely to be occasioned by allowing the applicant to file his appeal, which he says is arguable, and I am in no position to say it is not, given the issues it raises, so that the same can be ventilated and adjudicated upon on the merits. I would rather open the door so that the applicant, and the respondent as well, can obtain substantial justice instead of shutting the applicant out on account of delay that is not inordinate, has been explained, and will not occasion any prejudice or injustice.

Being of that mind, I allow the application and direct that the applicant do file and serve a notice of appeal within 7 days of today and a record of appeal within thirty (30) days thereafter.

The costs of this application shall be in the intended appeal.

Dated and delivered at Nyeri this 1st day of October, 2015.

P. O. KIAGE

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

DEPUTY REGISTRAR