[2023] KECA 1317 (KLR)

Taireni Association of Mijikenda v North Witu Ranching Ltd & 9 others; Alperton Holdings Ltd & 3 others (Interested Parties) (Civil Application E029 of 2023) [2023] KECA 1317 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1317 (KLR)

Republic of Kenya

In the Court of Appeal at Malindi

Civil Application E029 of 2023

KI Laibuta, JA

November 10, 2023

Between

Taireni Association Of Mijikenda

Applicant

and

North Witu Ranching Ltd

1st Respondent

Witu Nyangoro Ranch T/A Company Ltd

2nd Respondent

Witu Livestock Cooperative Society Ltd

3rd Respondent

Nairobi Ranching Company

4th Respondent

Ayadh Saleh Said, Said Saleh & Omar Saleh Said

5th Respondent

Lamu County Government

6th Respondent

National Land Commission

7th Respondent

The Chief Land Registrar

8th Respondent

The Cabinet Secretary, Ministry Of Land & Physical Planning

9th Respondent

Attorney General

10th Respondent

and

Alperton Holdings Ltd

Interested Party

Better Globe Forestry Ltd

Interested Party

Kipini Wildlife & Botanical Conservatory Trust

Interested Party

Witu Forest & Kipini Conservancy Forest

Interested Party

(Being an application for extension of time to file an Appeal out of time from the Judgment and Decree of the Environment and Land Court of Kenya at Malindi (M. A. Odeny, J.) delivered on 10th July 2023 in Petition No. E013 of 2020 Petition E13 of 2020 )

Ruling

1. Coming for hearing before me is a Notice of Motion dated August 25, 2023 made under Rule 4 of the Court of Appeal Rules, and by which the Applicant, Taireni Association of Miji Kenda, prays, inter alia, for extension of time to file their intended appeal out of time; and that the notice of appeal dated July 10, 2023 be deemed as duly filed.

2. The applicant’s Motion is supported by the annexed affidavit of learned counsel for the applicant, Oduor Henry John, sworn on August 25, 2023. The application is also made on the following grounds set out on the face of the Motion, namely: that the impugned judgment was delivered on July 7, 2023; that the applicant lodged the notice of appeal for assessment of the fees payable on July 10, 2023, but that the notice and assessment of the filing fees payable landed on their spam mail on July 12, 2023; that, upon inquiry on August 24, 2023, counsel was advised by the Registry to check their spam mail, whereupon they noticed that the notice and assessment had been mailed, but landed on spam on July 12, 2023; that the delay in filing the notice of appeal was not deliberate; that the applicant should be given the opportunity to pursue the appeal; that no prejudice will be suffered by the respondents and the interested parties; and that this application was brought within a reasonable time.

3. The affidavit in support of the applicant’s Motion merely deposes to the grounds aforesaid.

4. In addition, counsel filed written submissions dated September 19, 2023 citing the case of Sokoro SACCO v Mwamburi [2023] KECA 381 (KLR), highlighting the principles for consideration of applications under rule 4 of the Court of Appeal Rules which, in their submission, have been met. They requested me to allow the application as prayed.

5. In response to the application, the 2nd respondent filed a replying affidavit of its Chairman, Abdulla Ijema Algi, sworn on October 5, 2023 in which he depones that the applicant has not met any of the requirements for grant of extension of time; that the applicant’s intended appeal is not arguable; that the Motion is brought after an inordinate delay of more than 30 days after delivery of the impugned judgment; and that the applicant has not given plausible and satisfactory explanation for the delay.

6. Counsel for the 2nd respondent, M/s. Kilonzo & Aziz, filed written submissions dated October 5, 2023 citing the cases of Mundia v Karanja & 6 Others [2023] KECA 665 (KLR) and Elaki v AG [2022] KECA 722 (KLR), highlighting the principle that extension of time is discretionary; and Elaki v AG [2022] eKLR for the proposition that litigation must come to an end and the respondent given the opportunity to enjoy the fruits of its judgment. They urged us to dismiss the application with costs.

7. On his part, Martin Mwarome Munga, State Counsel representing the 8th to 10th respondents, filed his replying affidavit sworn on October 30, 2023 stating that the applicant’s Motion was filed more than 30 days late; that the applicant has not given plausible and satisfactory explanation for the delay; and that the application is not accompanied by a memorandum of appeal to determine whether the applicant has an arguable appeal.

8. State counsel filed written submissions and a list of authorities dated October 30, 2023 citing the cases of Paul Wanjohi Mathenge v Dancun Gichane Mathenge [2013] eKLR, submitting that application of the Court’s discretion under rule 4 ought to be done with caution and on a case-to-case basis; and Kenya Revenue Authority & 2 Others v Mt. Kenya Bottlers & 2 Others[2022] KESC 3 (KLR) for the proposition that an applicant seeking extension of time within which to file a notice of appeal ought to comply with the guiding principles so as to succeed. Likewise, they urged me to dismiss the Motion with costs.

9. In the same vein, the 4th interested party filed its replying affidavit sworn by its Managing Director, Jean Paul Deprins, on October 26, 2023 stating that there is no plausible explanation by the applicant for the delay of more than 30 days in filing the intended appeal; that extension of time is an equitable remedy reserved to a deserving applicant; and that the applicant has failed to demonstrate a good and sufficient cause for not filing the appeal in time. Its learned counsel, M/s. Makhandia & Makhandia, filed written submissions dated October 27, 2023 essentially submitting on the facts deposed to in the 4th interested party’s replying affidavit. Counsel did not cite any judicial authorities. Likewise, he urged me to dismiss the applicant’s Motion with costs.

10. Mr. Mohamed Ali appeared for the 3rd interested party and associated himself with the replies and submissions filed by the 4th interested party and the above-mentioned respondents. He also asked me to dismiss the applicant’s Motion with costs.

11. The 1st 3rd 4th 5th 6th and 7th respondents, and the 1st and 2nd interested parties, did not file any replying affidavit or written submissions in respect of the application before me. Neither were they represented at the hearing of the Motion on November 1, 2023.

12. Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to“… extend the time limited by these Rules, or by any decision of the Court or of a superior Court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act …,” on such terms as it thinks just (see Fakir Mohammed v Joseph Mugambi and two others [2005] eKLR).

13. This Court in Leo Sila Mutiso v Helen Wangari Mwangi[1999] 2 EA p231 set out the principles to be applied in exercise of its discretion in determination of any application under Rule 4. The Court held that“the decision whether or not to extend time is discretional. The Court in deciding whether to grant an extension of time takes into account the following matters: first, the length of the delay; second, 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.”

14. With regard to the merit of the appeal, it is sufficient for the Applicant to demonstrate that he or she has an arguable appeal with the likelihood of success. In its Memorandum of Appeal dated August 25, 2023, the applicant advances 5 grounds on which its intended appeal is anchored, and for which it faults the learned Judge, inter alia: for finding that the applicant did not have locus standi to file the suit that led to the impugned judgment; for failing to exercise her discretion judiciously; for failing to determine that the applicant and its members had interest in the subject matter of the suit; and for failing to find that no fraud had been perpetrated, and that no constitutional rights had been breached.

15. this Court has observed that an arguable appeal is not one that must necessarily succeed, but is one which ought to be argued fully before the Court. Sitting in Mombasa in Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] eKLR, this Court observed:“Whether the intended appeal has merits or not is not an issue to be determined by a court when dealing with an application of this nature but by the court dealing with the merits of the appeal, that is why the requirement that the intended appeal be arguable is preferred with the word “possibly”.”

16. In Muchungi Kiragu v James Muchungi Kiragu and another[1998] eKLR, the Court held that:“This Court has on several occasions granted extension of time on the basis that an intended appeal is an arguable one and that it would therefore be wrong to shut an applicant out of court and deny him the right of appeal unless it can fairly be said that his action was, in the circumstances, inexcusable and that his opponent was prejudiced by it.”

17. It is noteworthy, though, that demonstration by an applicant that he or she has an arguable appeal is not the only requirement or qualification for extension of time under Rule 4 to file an intended appeal. It is merely the first step that must be followed by satisfaction of the other requirements relating to the period of delay; the reasons for the delay; whether such delay is inordinate; and whether the adverse party would be prejudiced by grant of the orders sought under the Rule. In other words, is it too late in the day to approach the Court under Rule 4? Has the applicant explained to the satisfaction of the Court the reason for the delay in filing the intended appeal?

18. I take note of the fact that the impugned judgment was delivered on July 10, 2023. The applicant filed its Notice of Appeal together with its Motion on August 25, 2023 (only 22 days after the 14 days allowed under Rule 77(2) of the Rules of this Court), which I do not consider to be inordinate delay.

19. I take to mind this Court’s decision in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet[2018] eKLR where it was observed that“… the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favourably exercisable.”It is only then would consideration as to whether the intended appeal is arguable would be worthy of the Court’s attention in exercise of its discretion under Rule 4.

20. The applicant has given plausible and satisfactory explanation for the 22 days delay in filing its Notice of Appeal.

21. Finally, I find that the respondents and the interested parties do not stand to suffer any prejudice if the applicant’s Motion is allowed.

22. Having carefully considered the applicant’s Motion, the grounds on which it is made, the affidavits filed in support thereof and in reply, and having further considered the written submissions and list of authorities by the respective learned counsel, I am satisfied that the applicant’s Notice of Motion dated August 25, 2023 has merit. Accordingly, I hereby order and direct that:a.time be and is hereby extended for the applicant to file and serve its Notice of Appeal;b.the Notice of Appeal filed on June 2, 2023 be admitted and deemed as duly filed and served;c.the costs of this application be in the intended appeal.

DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF NOVEMBER, 2023. DR. K. I. LAIBUTA……………………………………JUDGE OF APPEALI certify that this is a True copy of the originalDEPUTY REGISTRAR