1. The notice of motion dated 22nd December 2023, is stated to be brought under Section 79G and 95 of the Civil Procedure Act and Order XLIX Rule 5 of the Civil Procedure Rules.
2. The proposed appellant seeks leave to file an appeal out of time against the whole ruling of P.C Koskei Senior Principal Magistrate delivered on 2nd November, 2023 in ELC No. 30 of 2020.
3. He also prays that the notice of motion and Memorandum of Appeal annexed be deemed as duly filed and served.
4. That costs of the application be provided for.
5. As can be discerned from the grounds on the face of the application and affidavit sworn in support thereof, by Adija Chausiku Kiprono on 22nd December 2023, the application is premised on the grounds that after the ruling was delivered on 2nd November, 2023 by Hon Koskei in favour of the defendant, she was dissatisfied and requested for typed proceedings and ruling on 14th November 2023; that a copy of the typed ruling was received but was quickly retracted for the reason that it had an error; that by the time the rectification was done and the ruling forwarded, the period to appeal had lapsed. She urges the court to enlarge time within which to file the appeal as the delay of 22 days is not so inordinate as to be inexcusable. It is also her contention that the defendant/ respondent will not be prejudiced if the application is allowed.
6. The application is opposed vide the replying affidavit of Ednah Tigoi sworn on 12th February 2024. She deposes that nothing stopped the proposed appellant from filing an initial record of appeal by 2nd December 2023 and thereafter filing a supplementary record of appeal upon receipt of the signed certificate of delay on 25th December 2023.
7. It is their contention that the matter had earlier been handled by Hon P.C Biwott SPM Kabarnet who in his ruling dated 22nd July 2021, ordered the plaintiff to vacate the suit property in six months; that dissatisfied with the ruling, the proposed appellant filed an appeal in Eldoret ELC MISC E35 of 2021. Obaga J, in dismissing the application on 12th May 2022, stated that the proposed appellant did not have a letter of allotment and the respondent being a Government institution, the proposed appellant could not acquire the suit property by prescription. He agreed with the trial court that if the matter proceeded for full hearing, it would be a waste of time.
8. For some unknown reason, the file found its way back to court and the matter proceeded for full hearing before Hon Wanjala. Before hearing of the suit was concluded, Hon. Koskei who had taken over the matter, noted that the matter had been concluded in the ruling of 22nd July 2021, therefore the court had no jurisdiction to proceed with the main suit.
9. The respondent further contends that allowing the application will cause prejudice to the proposed respondent; that the appeal has no merit and is aimed at delaying the proposed respondent from enjoying the fruits of her ruling; that the application is an abuse of the court process and ought to be dismissed as the appellant has come to court with unclean hands.
10. Pursuant to directions given on 14th February 2024, the application was disposed of by way of written submissions.
11. In her submissions filed on 14th March 2024, the proposed applicant gave an overview of the case urged before the lower court and framed issues for determination as follows;
1) Whether the learned trial magistrate rightfully granted the mandatory injunction sought in this case;
2) Whether the learned trial magistrate misapprehended the application before him and shut out the appellant from being heard
3) Who will bear the costs of the appeal.
12. In its submissions dated 18th March 2024, the respondent framed issues for determination as follows;
1) Whether the prayer to appeal out of time is merited;
2) Whether there is good and sufficient cause for not filing the appeal on time
3) What is the degree of prejudice to the respondent if the application is granted.
Analysis and Determination.
13. I have carefully considered the application, the affidavits in support and in opposition, the written submissions and circumstances leading to filing of the instant application.
14. I have looked at the annextures and noted that three rulings have been delivered in this matter on the issue of whether the matter should proceed to full hearing. There is consensus in two of the rulings that proceeding to full hearing would be a waste of time. In the third ruling by Hon. P. Kosgei SPM, she merely confirmed that the matter had been concluded and she had no jurisdiction to deal with it further. My Brother Obaga J, pronounced himself in his ruling delivered on12th May 2022 and in agreeing with the trial court, stated that there was no need for the matter to go for hearing. By entertaining this application, I will be sitting as an appellate court on a decision made by a court of concurrent jurisdiction, which jurisdiction I do not have. For the above reasons, I decline to grant the orders sought as I find the application to be devoid of merit. Consequently, I dismiss it with costs to the respondent.
15. Orders accordingly.
Ruling dated, signed and delivered at Iten this 15th day of May, 2024.
Ruling read and delivered electronically in the presence of:-
N/A for the applicant
Ms. Tigoi for the defendant/respondents
Court Asst.: Christine