[2023] KECA 1478 (KLR)

Njonjo v Nyambura & 2 others (Civil Application E397 of 2023) [2023] KECA 1478 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1478 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E397 of 2023

M Ngugi, JA

December 8, 2023

Between

Francis Maina Njonjo

Appellant

and

Nancy Lydia Nyambura & 2 others

Respondent

(Being an Application for extension of time to file a record of appeal out of time from the judgment and decree of the Environment and Land Court at Thika (J.G. Kemei J.) dated 22nd September, 2022inThika ELC No. 78 of 2021 Environment & Land Case E078 of 2021 )

Ruling

1. In the application dated 14th August 2023 brought under rule 4 of the Court of Appeal Rules, 2022 and section 3A and 3B of the Appellate Jurisdiction Act, the applicant asks this Court to extend time for filing the record of appeal against the judgment delivered on 22nd September 2022 by J. G. Kemei J. in Thika ELC Case No. 78 of 2021.

2. The application is based on the grounds set out on its face and on an affidavit sworn by the applicant on 14th August, 2023. The applicant states he lodged his notice of appeal on 22nd September 2022 and served it on the respondents. He also applied for certified copies of the proceedings on the same date and served the letter bespeaking the proceeding on the respondents, and he has annexed a copy of his letter to his application. He did not, however, file the record of appeal on time as he received typed proceedings outside the window allowed to lodge the record of appeal. He was informed on 12th July 2023 that the proceedings were ready, and he collected them on the same day. He was issued with a certificate of delay on 8th August 2023, a copy of which he annexes to his affidavit. He has also attached a draft Memorandum of Appeal to his application. Also attached are two letters dated 18th January 2023 and 9th May 2023 respectively to the Deputy Registrar of the ELC in Thika requesting for the judgment, typed proceedings and decree.

3. The applicant avers that his appeal has high chances of success, and the respondents will not suffer prejudice if his application is allowed.

4. In his submissions in support of his application, the applicant reiterates the averments in his affidavit. He relies on the case of LSG Lufhansa Service Europa/Africa GMBH & LSG Sky Chefs Ltd vs Eliab Muturi Mwangi Civil Appeal Application No. 274 of 2016, though he does not indicate the principle that he wants the Court to be guided by in that decision. The decision, unfortunately, is not among the documents furnished to the Court in the email forwarding the application.

5. The respondents have not filed a response to the application, though the hearing notice indicates that they were all served.

6. I have considered the applicants, the grounds on which it is brought and the averments and submissions by the applicant. Under rule 4 of the Rules of this Court, the Court has the discretion, for sufficient reasons, to extend the timelines for the doing of any act required under the Rules. In exercising this discretion, the Court is required to consider the length of the delay, the reasons for the delay, the prejudice, if any, that will be suffered by the respondents if the order sought is granted and, possibly, the chances of success of the intended appeal- see Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 in which this Court laid down the parameters for exercise of the discretionary power under rule 4 as follows:“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: first 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.”(Emphasis added)

7. In this case, the applicant lodged his notice of appeal on time, and on the same day, the 22nd of September 2022, applied for certified copies of the proceedings. He followed up the issue of the proceedings in January and May 2023, writing to the Deputy Registrar of the ELC and requesting to be furnished with the proceedings and judgment. He was notified that the proceedings were ready on 12th July 2023, and he collected them the same day. The Certificate of Delay was ready for collection on 3rdAugust 2023, and he collected it on 8th July 2023. The present application is dated 14th August 2023, and was thus filed a week from receipt of the Certificate of Delay.

8. In the circumstances, I find that the delay in filing the record of appeal was excusable in view of the fact that it was due to factors beyond the control of the applicant, who had done everything he was required to do under the Rules with a view to lodging his appeal. Accordingly, I allow the applicant’s application dated 14th August 2023. I direct that the record of appeal shall be filed and served within 45 days from the date of this ruling.

9. There shall be no order as to costs.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. MUMBI NGUGIJUDGE OF APPEAL.................................I certify that this is a true a copy of the originalSIGNEDDEPUTY REGISTRAR