[2023] KEELC 16245 (KLR)

Njenga (Suing as the legal representative of the Estate of Njenga Wanyoike (Deceased) & another v Karani & another (Environment & Land Case 38 of 2011) [2023] KEELC 16245 (KLR) (9 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16245 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 38 of 2011

LN Mbugua, J

March 9, 2023

Between

Margaret Wambui Njenga (Suing as the legal representative of the Estate of Njenga Wanyoike (Deceased)

1st Plaintiff

Joseph Kinyanjui Njenga (Suing as the legal representative of the Estate of Njenga Wanyoike (Deceased)

2nd Plaintiff

and

Annah Fridah Karani

1st Defendant

Embakasi Ranching Co Ltd

2nd Defendant

Ruling

1. Judgement was entered in this matter on April 27, 2022, where the court dismissed both the plaintiffs’ claim and 1st defendant’s counterclaim for lack of prove of ownership to the plots No A350 and A351 hived from land parcel LR No 10904/2 in Ruai.

2. The plaintiffs have filed an application dated November 14, 2022 seeking extension of time within which to file a notice of appeal. The application is based on grounds on its face and on the 2nd plaintiff’s supporting affidavit sworn on November 14, 2022. He deposes that on February 26, 2022, the case proceeded for hearing without his participation and judgment was entered on April 27, 2022. Dissatisfied with the judgment, the plaintiffs intend to file an appeal against it, but the stipulated 30 days within which to file a notice of appeal have lapsed. He deposes that delay to file a notice of appeal was occasioned by the fact that soon after the judgment was issued, the plaintiffs proffered an application for review of judgement which has since been dismissed.

3. The application is opposed by the 1st defendant vide her replying affidavit sworn on January 30, 2023. She deposes that the application is brought after inordinate delay being 6 months and 18 days after the delivery of judgement and no sufficient reason has been advanced for the delay. He further deposes that by opting to file an application for review, the plaintiffs were foregoing their right of appeal. She points out that the plaintiffs have not annexed a draft memorandum of appeal thus this court is unable to gauge the chances of the success of their intended appeal. She also avers that on January 26, 2022 when the matter was called for hearing, the 2nd plaintiff declined to cross examine her and the plaintiffs never set aside the proceedings of that date either, thus it cannot be said that they were not heard.

4. The plaintiffs filed written submissions dated January 18, 2023. They rely on the case of Stecol Corporation Limited v Susan Awuor Mudemb [2021] eKLR where the court allowed an application for enlargement of time. They submit that the discretion of this court to enlarge time for filing of a late appeal is unfettered so long as it is guided by the principles pronounced in the case of Edith Gichungu Koine v Stephen Njagi Thoithi[2014] eKLR. They put forward the case of Kamlesh Mansukhalal Damki Patni v Director of Public Prosecutions & 3 others [2015] eKLR to submit that a court of law should be guided by article 48 and 50 (1) of the Constitution and be slow to closing the door to the corridors of justice prior to a litigant being heard on his complaint.

5. The 1st defendant filed written submissions dated January 30, 2023. She relies on the Supreme court case of Mombasa County Government v Kenya Ferry Services & Another [2019] eKLR to submit that the plaintiffs have not met the threshold for grant of orders for extension of time within which to file a notice of appeal.

6. I have duly considered all the issues raised herein as well as the submissions of the parties. This court has unfettered discretion to extend time within which to file a notice of appeal under section 7 of the Appellate Jurisdiction Act. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others [2015] eKLR, the Supreme Court held that;“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant.”

7. After judgment was delivered herein on April 27, 2022, the plaintiffs filed an application for review dated May 23, 2022, which was later withdrawn via the Notice of withdrawal of suit dated July 6, 2022. They then waited 4 months to bring this application. No explanation has been offered for this delay.

8. Despite the manifestation of delay on the part of the applicant, this court has considered the peculiar circumstances of this case where by the cogs of the dispute are to be found in the entity known as “ Embakasi Ranching Company Ltd”, the 2nd defendant. However, this entity was missing in action in this matter as noted in paragraph 14 of the judgment. In the circumstances, I am inclined to allow the application on strict conditions as follows;1. The applicant is granted leave to file and serve the relevant notice of appeal within 14 days from the date of delivery of this ruling.2. The applicant is condemned to pay throw away costs of Kshs 30,000 to the respondent, the same to be paid within 14 days.3. The leave granted herein shall lapse in the event of none compliance with any of the orders given herein.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS.LUCY N MBUGUAJUDGEIn the presence of:-Mr. Mokua for 1st defendantCourt assistant: Vanilla