[2023] KEHC 23944 (KLR)

Njine & 3 others v Njeru (Miscellaneous Application E008 of 2023) [2023] KEHC 23944 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23944 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Application E008 of 2023

LM Njuguna, J

October 18, 2023

Between

Njiru Njine

1st Applicant

Alice Gicuku

2nd Applicant

John Nyaga

3rd Applicant

Emilio Njeru

4th Applicant

and

Njiru Jotham Njeru

Respondent

Ruling

1. The applicants filed the notice of motion dated 23rd February 2023 premised on the grounds on its face and the supporting affidavit, seeking orders that:a.The applicants be granted leave to appeal out of time against the whole judgment of Hon. J.W. Gichimu SPM, delivered on 24th November 2022;b.The costs of this application be provided for.

2. It is the applicants’ case that after the judgment was delivered, they applied for typed proceedings for purposes of appeal. That they were not represented and were under the impression that they would be informed once the proceedings had been typed. That they followed up on 02nd February 2023 or thereabouts, for the typed proceedings. In the supporting affidavit sworn by the 1st applicant, on his own behalf and that of the 2nd, 3rd and 4th applicants, he stated that succession case no. 364 of 2008 had been filed in respect of the estate of the late Karigi Getanguthi who was his father, comprising of property title number Gaturi/Nembure/3661.

3. That one of his brothers known as Silvano Njiru Njeru subdivided the said property into several portions and sold property numbers Gaturi/Nembure/14624 and Gaturi/Nembure/16110 to the respondent who is not a beneficiary of the estate. That the said Silvano Njiru Njeru apportioned the remaining subdivided portions amongst the applicants as follows:a.Gaturi/Nembure/14625 to the 1st applicantb.Gaturi/Nembure/14640 to the 2nd applicantc.Gaturi/Nembure/11463 to the 3rd applicant

4. He stated that prior to the death of the deceased, the land had not been subdivided. That all the houses of the applicants happen to fall on the portions sold to the respondent. That the 2nd applicant is still in possession of the original title that has allegedly been subdivided and since she is advanced in years, she fears that if the appeal is not heard, she will be rendered destitute. That the delay in filing the appeal was due to the mistaken belief that they would be informed once the typed proceedings were ready.

5. When the matter was mentioned before the Deputy Registrar on 05th June 2023, all the parties were present, the applicants in person and the respondent being represented by counsel. Counsel for the respondent prayed for time to file his response to the application and the court granted 7 days within which to respond. The matter was mentioned again on 12th September 2023 when the applicants were all marked as absent and counsel for the respondent was present. The matter was again mentioned on 25th September 2023 when counsel for the applicants and counsel for the respondents were both present and they took a ruling date. It is not noted on record that any response to the application was filed, neither were written submissions filed. Therefore, the application shall be deemed unopposed.

6. Leave to appeal out of time may be granted where there has been a delay beyond the allowable statutory period of 30 days within which to appeal. However, the applicant must satisfy the court that there is a good reason for the delay. These orders may be granted at the discretion of the court. Section 79G of the Civil Procedure Act provides:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.”

7. Similarly, in the case of Edith Gichungu Koinevs Stephen Njagi Thoithi(2014) eKLR the court held thus:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”

8. The impugned judgment was delivered in November 2022 and the application herein was filed in February 2023. There is a delay of about 3 months. The applicants claim that the reason for delay is that they had applied for typed proceedings from the court but the same were not ready as soon as they had hoped. That additionally, they followed up with the court on 02nd February 2023 to check if the proceedings were ready but they had mistakenly believed that they would be informed once the proceedings were ready.

9. The explanation by the applicants is not satisfactory as was also held in the case of Mombasa County Governmentvs Kenya Ferry Services & another [2019] eKLR where the court found this reason to be insufficient when the appeal was filed two months late, and held:“…Further, in the case of County Executive of Kisumu vs County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:“a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.”

10. In my view, it is evident that the applicants slept on their responsibility to follow up on the proceedings and file the appeal within the stipulated time. As the adage goes, delay defeats equity. It is also said the equity aids the vigilant. I strongly agree with these sentiments as were stated in the case of Amina Karamavs Njagi Gachangua & 3 others [2020] eKLR where the court held:“It has been held that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi Vs Francis Ndegwa Mwangi [2014] eKLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C. (31st Edition) at page 99:“The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”

11. That being said, I do note the shortfalls of the applicants and I am not convinced that the applicants deserve the orders sought. However, I am accountable to Article 159 of the Constitution which bestows judicial authority on this court. I shall also be guided by the Sections 1A, 1B and 3A of Civil Procedure Act which provides for the overriding objective. Only on this basis shall the orders be granted. Subsequently, the applicant is hereby granted leave to file the appeal out of time on the following conditions:a.The appeal to be filed within 14 days from today.b.That the record of appeal be filed and served within 14 days from the date of this ruling failing which the appeal shall stand dismissed;c.That the appeal be prosecuted within 120 days of filing the record of appeal, failing which the appeal shall stand dismissed;d.Each party to bear their own costs.

12. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 18TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE