[2023] KECA 1364 (KLR)

Okuku (Suing as the legal administratrix of the Estate of Hezekiah Okuku (Deceased)) v Orindo ((Sued as the legal administrator of the Estate of Fredrick Orindo Mosioma (Deceased)) (Civil Application E070 of 2023) [2023] KECA 1364 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1364 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application E070 of 2023

HM Okwengu, JA

November 10, 2023

Between

Elisa Akinyi Okuku

Applicant

Suing as the legal administratrix of the Estate of Hezekiah Okuku (Deceased)

and

Vincent Nyakundi Orindo

Respondent

(Sued as the legal administrator of the Estate of Fredrick Orindo Mosioma (Deceased)

(Being an application for extension of time to file and serve the Record of appeal out of time against the judgment of the Environment and Land Court of Kenya at Kisii (Onyango J.) dated 26th July, 2022inKisii ELC No. 270 of 2013 Environment & Land Case 270 of 2013 )

Ruling

1. On July 26, 2022, the Environment and Land Court (J.M Onyango, J) delivered a judgment in which a claim that had been filed by the applicant Elsa Akinyi Okuku suing as the administratrix of the estate of Hezekiah Okuku (deceased) was dismissed.

2. The applicant had filed a suit against the respondent herein Vincent Nyakundi Orindo suing as the legal administrator of the estate of Fredrick Orindo Mosioma (Deceased), seeking in the main, a declaration that the transfer and registration of land parcel No Kitutu/Daraja Mbili/554 (suit property) registered in the name of Fredrick Orindo Mosioma was irregular, illegal, null and void; that an order issue for cancellation of the transfer to Fredrick Orindo Mosioma and, restoration in the register of the name of Hezekiah Okuku, (deceased) as the owner of the suit property.

3. The applicant being dissatisfied with the judgment of the ELC, filed a notice of appeal on August 2, 2022. He is now before this court with a notice of motion dated June 16, 2023 seeking to have time extended to enable him file a memorandum of appeal and the record of appeal.

4. The applicant explains that although his notice of appeal was filed in good time, the delay in filing the memorandum of appeal and record of appeal was due to a breakdown of communication between her and her advocate, resulting in delay in issuing instructions to her advocate, and payment of the required fees.

5. The applicant attributes the breakdown in communication to the respondent’s action of destroying the developments and residential houses that were situated on the suit property, causing the applicant to seek alternative residence in her ancestral home, which made it impossible for her to access the suit property which was her only source of livelihood.

6. In addition, the applicant states that the letter bespeaking instructions in regard to the intended appeal were not respondent to as her postal address was no longer in use; that her telephone contacts were not reliable as she was experiencing network challenges; and that she only learned that the record of appeal had not been filed on June 16, 2023 when she visited her advocate’s offices to follow up on the appeal. The applicant urges the court that the delay is not inordinate because it is only 15 days and that in any case, the delay has been explained.

7. The applicant further contends that she had demonstrated through the draft memorandum of appeal that she has an arguable and meritorious appeal that raises several important issues, and that if the orders sought are granted no prejudice will be occasioned to the respondents who are currently utilizing the suit property.

8. The applicant has also filed written submissions in which she relies on several authorities including the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others, [2014] eKLR; Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, [2018] eKLR; and Stanley Kangethe Kinyanjui v Tony Ketter & 5 others, [2013] eKLR. She urged the court that she is deserving of the exercise of the court’s discretion as she has provided a plausible reason for the delay in filing the memorandum and record of appeal.

9. In response to the application, the respondent filed a replying affidavit in which he claimed that the applicant filed Civil Application No E126 of 2022 in which she obtained orders of maintenance of status quo, and that is why she has deliberately failed to move the court or file the record of appeal as required by law.

10. The respondent maintains that the applicant has not produced any receipts for the filing of the notice of appeal or for the supply of proceedings of the trial court nor is there any evidence that she sought a certificate of delay from the registrar of the ELC court. The respondent argued that the applicant’s motion is an afterthought, calculated to mislead the court into issuing orders for the benefit of third parties, and it is also an abuse of the due process of the court. In addition, that the applicant is indolent and has not demonstrated any efforts to meet the deadlines set by the rules, nor has she met the threshold for granting the orders sought.

11. The respondent also filed written submissions in which he relied on Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission and 7 others, [2014] eKLR (supra), maintaining that the applicant had not met the prerequisite for extension of time and that the explanation she has given for the 9 months’ delay was not plausible.

12. I have considered the motion before me, and the contending submissions by the parties. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others (supra), the Supreme Court set out the principles applicable in an application for extension of time as follows:“… we derive the following as the underline principles that the court should consider in exercise of such discretion.1. Extension of time is not a right of party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.5. Whether they will be any prejudice suffered by the respondent if the extension is granted.6. Whether the application has been brought without undue delay; and7. whether in certain cases like election petitions public interest should be a consideration for extending time.”

13. In this case, it is not disputed that the applicant filed a notice of appeal on August 2, 2022, and about 10 months later by his application dated June 16, 2023, is seeking extension of time to file the memorandum of appeal and record of appeal, documents that ought to have been filed within 60 days from the August 2, 2022.

14. The applicant has blamed the respondent for the breakdown of communication with her lawyer. However, the applicant has not exhibited any evidence to show that the respondent destroyed developments and houses on the suit property nor has she demonstrated any efforts that she made to contact her advocate in order to pursue her appeal.

15. Part of the delay is attributed to the time taken to obtain proceedings and judgment. According to her advocate’s letter dated August 2, 2022, the applicant’s advocate applied for typed copies of proceeding and judgment on August 2, 2022. The letter is indicated as copied to Nyambati and Co. Advocates, but there is no evidence that the said letter was served on the respondent’s counsel. Moreover, there is no certificate of delay indicating when copies of the typed proceedings were issued, and the time taken to prepare the same.

16. Two letters from the applicant’s advocate have been exhibited, one dated March 17, 2023 and another dated April 5, 2023. These letters demonstrate efforts made by applicant’s advocate to contact her with a view to instructions on the appeal. Both letters are addressed to the applicant’s address in Homabay. There is nothing to show that this address was not in use as alleged by the applicant. The applicant has claimed that she had difficulties accessing network hence the inability to communicate with her advocate on phone. While this is possible, it is unlikely that such difficulties could have lasted for 10 months. I find that the applicant has been guilty of delay of 10 months which delay in the circumstances herein, is inordinate. Moreover, no plausible explanation has been given for the delay.

17. As at January 30, 2023, the applicant’s advocate and the respondent’s advocate had entered into an agreement for the status quo obtaining in regard to the suit property to be maintained pending the hearing and determination of the intended appeal, and the respondent was restrained by an injunction from disposing of the suit property. It is evident that the applicant was in contact with her advocate and that is why the application for conservatory orders was prosecuted.

18. I come to the conclusion that the applicant has not satisfied this court that she had any satisfactory explanation for the delay in filing the memorandum of appeal and the record of appeal to justify this court exercising it discretion in her favour. Consequently, I dismiss the application dated June 16, 2023 with costs to the respondent.

DATED AND DELIVERED AND KISUMU THIS 10TH DAY OF NOVEMBER, 2023. HANNAH OKWENGU..…………….JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR