[2016] KEELC 818 (KLR)
The court found that the applicant was present during the hearing and delivery of the Land Adjudication officer's decision on 13th May 2011, as evidenced by the signed proceedings and the explicit explanation of the right of appeal within sixty days. The applicant's claim of ignorance until August 2015 was found to...
Source-derived case information.
- Citation
- [2016] KEELC 818 (KLR)
- Parties
- Applicant: Njeru M’Changara; Respondent: Beatrice Nduku Mutua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 45 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- BN Olao
- Legal Topics
- Leave to Appeal Out of Time, Discretionary Remedies, Delay in Filing, Land Adjudication Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru M’Changara
Applicant
Beatrice Nduku Mutua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to file an appeal out of time against the decision of the Land Adjudication officer.
- 2 Whether the applicant has provided sufficient and credible reasons for the delay in filing the appeal.
- 3 Whether the exercise of the court's discretion is warranted in the circumstances.
Ratio Decidendi
The court found that the applicant was present during the hearing and delivery of the Land Adjudication officer's decision on 13th May 2011, as evidenced by the signed proceedings and the explicit explanation of the right of appeal within sixty days. The applicant's claim of ignorance until August 2015 was found to be false and an attempt to mislead the court. The court held that the applicant had not come to court with clean hands and failed to provide any credible or sufficient explanation for the four-year delay in seeking leave to appeal. Given the discretionary and equitable nature of the remedy sought, and the applicant's lack of merit and candor, the court exercised its discretion...
Court Disposition
application dismissed
Orders
- The applicant's Notice of Motion dated 10th November 2015 is dismissed.
- Costs of the application to the respondent.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
MISC. APPLICATION NO. 45 OF 2015
NJERU M’CHANGARA.......................................................APPLICANT
VERSUS
BEATRICE NDUKU MUTUA...........................................RESPONDENT
RULING
This is in respect to the applicant’s Notice of Motion dated 10th November 2015 in which he seeks the following substantive orders:-
1. That this Honourable Court be pleased to grant leave to the applicant to file appeal out of time.
2. That the costs of this application be provided for.
The application is based on the grounds set out therein and based on the applicant’s supporting affidavit.
Basically, the applicant’s case is that he was not satisfied with the decision of the Land Adjudication officer delivered on 13th May 2011 and wishes to file an appeal against the same. His argument is that he was not informed when the decision was being delivered and only came to learn about it in August 2015 when the respondent showed intention of selling the land. Annexed to his supporting affidavit is a copy of the objection proceedings before the Land Adjudication officer dated 13th May 2011 in Objection Case No. 779 in relation to plot No. 793.
I have considered the application. This being an application for leave to appeal out of time, the Court has the discretion to grant such leave. However, that remedy is not a right but is an equitable remedy which is only available to a deserving party. In exercising such discretion, the Court will consider the following:-
1. The nature of the delay.
2. The reasons for the delay.
3. Whether any prejudice will be caused to the other party.
4. Whether public interest militate for or against such extension etc.
See SALAT VS I.E.B.C and 7 OTHERS 2014 e K.L.R and also BAGAJO VS CHRISTIAN CHILDREN FUND INC (2004) 2 K.L.R 273.
The applicant herein says that he was not aware when the decision the subject of the appeal was being delivered and only came to know about it in August 2015. That cannot be correct because attached to his own application are the proceedings before the Land Adjudication officer dated 13th May 2011 (annexture NM 1) which show that he was present during the hearing and even cross-examined the objector who was represented by his wife BEATRICE NDUKU MUTUA. Indeed at the end of the hearing, the applicant addressed the Land Adjudication officer in the following terms in response to a question put to him:-
“I have no problem with this woman. I can stay with her”
The proceedings are even signed by the applicant who thumb-printed the same. The Land Adjudication officer then made the following decision:-
“I allow this objection partly and P/NO 773 to be sub-divided into two equal parts and each party to get half of the shares. Right of appeal to the Minister within sixty (60) days from to-day is explained to them. Objector issued with a new number 2489”
L.A.O
13. 5.2011”
It is clear therefore that the decision sought to be appealed from was delivered in the presence of the applicant on 13th May 2011 and the right of appeal explained to him. He cannot now claim that he only came to learn about the decision in August 2015. This remedy is a discretionary remedy which will not be granted to one who has come to Court with dirty hands. The applicant has clearly not come to Court with clean hands and has infact deliberately tried to mislead the Court. He is not deserving of that equitable remedy.
Secondly, it has taken the applicant four (4) years to move the Court. That is clearly undue delay which he has not even attempted to explain. Leave to appeal out of time is not granted as a matter of course.
In the circumstances therefore, the applicant’s Notice of Motion dated 10th November 2015 is wholly un-meritorious. It is accordingly dismissed.
B.N. OLAO
JUDGE
12TH MAY, 2016
Ruling dated, delivered and signed this 12th day of May, 2016 in open Court
Mr. Macharia for Mr. Kagio for the Applicant present.
B.N. OLAO
JUDGE
12TH MAY, 2016