[2021] KEELC 4593 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

APPEAL NO. 12 OF 2019

PATIENCE ABEID TSUMA................................................................................DEFENDANT

VERSUS

ASHA SAID TUAHA.........................................................................................RESPONDENT

RULING

1. By this Notice of Motion application dated 27th August 2019 as filed herein on 4th September 2019, Patience Abeid Tsuma (the Applicant) prays for Orders: -

2. That this Honourable Court be pleased to give leave to file an appeal out of time against the Judgment and decree delivered by Hon R. Ondieki on 12th June 2009 inSPM Case No. 129 of 2013;

3. That the Honourable Court be pleased to deem the draft Memorandum of Appeal attached herein as duly filed on time.

4. ………….

5. That this Honourable Court be pleased to issue a stay of execution of the Judgment and decree delivered by Hon. R. Ondieki on 12th June 2019in SPM Case 129 on 2013 pending hearing of the Appeal.

6. That costs of the application be provided for.

2. The application which is supported by an affidavit sworn by the Applicant is based on the grounds that: -

a. The trial in the said case was concluded on 23rd November 2018 and the matter was scheduled for Judgment on 14th December 2018;

b. The Applicant was thereafter notified that the trial Magistrate was on transfer and that Judgment would be delivered on notice;

c. The Applicant was not served with any such notice and only became aware of the Judgment upon being informed by the Respondent’s Advocates.

d. That the delay in lodging the Appeal was not of the Applicant’s own fault as she took steps to lodge an appeal as soon as she found out about the decision;

e. The Applicant had erected a house which was nearing completion on the suit property and she is apprehensive that the Respondent shall move in and demolish the property, an act that would occasion her irreparable loss and damage.

3. In response to the application, Asha Said Tuaha (the Respondent) avers in her Replying Affidavit filed herein on 15th November 2019 that following the delivery of the Judgment, her Advocate wrote to the Applicant’s Advocates on 19th July 2019 forwarding a draft decree for their input. The Respondent further avers that the Court issued a decree on 23rd August 2019 and it was served upon the Applicant’s previous Advocates on record on 3rd September 2019.

4. The Respondent asserts that there is no competent appeal that has been filed herein and the Applicant cannot be heard to allege that there is any appeal herein that shall be rendered nugatory. The Respondent further avers that she is entitled to the fruits of the Judgment in the primary suit and it is only natural that the stay orders sought should be declined.

5. I have perused the application and the response thereto. In regard to an Appeal from the Subordinate Court to this Court, Section 79 G of the Civil Procedure Act provides as follows: -

“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 any time which the lower Court may certify as having been requisite from the preparation and delivery to the Appellant 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 good and sufficient cause for not filing the appeal in time.”

6. In Mwangi –vs- Kenya Airways Ltd (2003) KLR, the Court of Appeal suggested some of the factors to be considered by a Court in the exercise of its discretion whether or not to extend the time to file an appeal out of time as the following:-

a. The period of delay;

b. The reason for the delay;

c. The arguability of the appeal;

d. The decree of prejudice which could be suffered by the Respondent if the extension is granted;

e. The importance of compliance with time limits to the particular litigation issues; and

f. The effect if any on the administration of justice or public interest if any is involved.

7. In the matter before me the Applicant was the Defendant in Kilifi SPMCC No. 129 of 2013; Asha Tuaha –vs- Patience Tsuma. The Plaintiff had sought an order of a permanent injunction to restrain the Applicant herein from trespassing upon or encroaching onto the suit property described as Plot No. Kilifi Township/10/44/203. The Plaintiff also sought an order compelling the Defendant who had assembled a building thereon, to vacate the suitland.

8. That suit was apparently heard and concluded by the Honourable R.K. Ondieki, Senior Principal Magistrate on 23rd November 2018. It was not contested that at the conclusion of the case, the Learned Trial Magistrate set the Judgment date as 14th December 2018. Neither was it contested that the Learned Trial Magistrate was subsequently transferred from Kilifi to Kisumu and that the Judgment was not read as earlier scheduled.

9. From the material placed before me, that Judgment was later written and dated 6th May 2019 by the trial Magistrate at Kisumu and was later read in open Court on 12th June 2019 in the presence of the Plaintiff’s Counsel but in the absence of the Defendant/Applicant herein.

10. There is no indication from the record whether or not any notice was given to the parties prior to the delivery of the Judgment. It is noteworthy that the Applicant asserts that she had no notice of that Judgment and that she only learnt of the same from the Plaintiff. Indeed, the Plaintiff/Respondent has not controverted that Statement anywhere in her Replying Affidavit.

11. In the said Replying Affidavit, the Plaintiff indeed avers that her Advocates wrote to the Applicant’s former Advocates on 19th July 2019 forwarding a draft decree. It is not clear if and when the said letter reached the said former Advocates and granted that this application was filed just over a month later on 4th September 2019, I am unable to fault the Applicant for the delay in bringing this application.

12. It is also clear to me from the material before me that the Applicant was in the process of erecting a residential home on the suit property. He has expressed concern that the Plaintiff/Respondent may proceed to demolish the same unless orders of stay are granted herein.

13. I think, the general principle in granting or refusing a stay is, that if there is no other overwhelming hindrance, a stay order ought to be granted so that an appeal may not be rendered nugatory should the Court to which the appeal is referred reverse the earlier decision.

14. Accordingly, and taking the totality of the circumstances herein into consideration, I am satisfied that there is merit in the application before me. In the premises, I allow the same in terms of prayers 2 and 5 thereof. The Applicant has 14 days from the date hereof to file and serve the Memorandum of Appeal upon the Plaintiff/Respondent.

15. The cost of this application shall be in the Appeal.

Dated,signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE