Introduction
1. Before court is a Notice of Motion dated 21st December, 2023 filed by the applicant seeking the following orders;
a) Spent
b) That this Honourable court be pleased to issue a temporary stay order on the order dated 23rd September, 2022 issued by the Honourable H. Wandere, Senior Principal Magistrate in MC & E Suit No. E153 of 2021 at Kakamega.
c) That the Honourable court do grant the defendant/appellant leave to file an appeal out of time in this matter as not only the beneficiaries but also other third parties stand to lose if the order is executed and/or implemented.
d) That this Honourable court do find that the Defendant/Applicant herein by allocating the plaintiff/respondent herein seven(7) acres in accordance with the confirmed letters of administration was rightfully allocated to her piece of land by the Administrator of the estate of Jotham Zooku Munuya.
e) Spent
f) That each party bear its own costs.
2. The application was predicated on the supporting and supplementary affidavits sworn on 21st December 2023 and 12th March 2024 respectively by the applicant. His case is that he is the administrator of the estate of Jotham Zooku Munuya and that he distributed the estate as per the confirmed grant and each beneficiary got their share so that the respondent was given 7 acres through her deceased husband.
3. That upon the death of the respondent’s husband, she began selling her share to third parties and no one has opposed the said sale. That having sold her entire 7 acres, the respondent still claims land from the estate of the late Jotham Zooku Munaya which is unfair to the other beneficiaries who are enjoying quite possession of their shares.
4. The application was opposed. Rosebella Mukasia Mulunda the respondent filed a replying affidavit sworn on 24th April, 2024. She stated that Kakamega MC L & E Case No. 153 of 2021 was heard and determined exparte. That the applicant was served but neglected to file Memorandum of Appearance and defence and that the matter proceeded and a judgment was entered in favour of the respondent. That the lower court cancelled the new titles and reverted to the original number. She argued that the instant application had been overtaken by events as the judgment had already been implemented. She argued that she did not ask for further allocation of her estate but only sought for ownership of the 7 acres allocated to her husband. That the appellant never transferred the estate using succession process or a certificate of confirmation, but used fraudulent means to transfer the estate into his name, which necessitated cancellation of the new numbers as seen in the register.
5. That the applicant filed an application for stay before the lower court which was never prosecuted to date, being application dated 14th November 2023, and that in that judgement, the appellant never sought to set aside ex parte judgement delivered in the lower court. That the applicant has approached court with unclean hands and cannot appeal an ex parte judgment which he never sought to set aside in the first place. That the application herein is an abuse of the court process and is overtaken by events.
Analysis and determination
6. The court has carefully considered the application as well as the response thereto. The issue that arise for the court’s determination is whether the applicant deserves the orders sought.
7. Section 79G of the Civil Procedure Act provides that appeals from the subordinate court to this court shall be filed in 30 days but the court may admit an appeal out of time where good and sufficient cause is shown.
8. The court has jurisdiction and discretion to extend time. Extension of time is not the right of a party, but in determining whether or not to grant extension of time, the court ought to consider the length of the delay, the reason for the delay and the interests of justice. An applicant for extension of time must explain to the court’s satisfaction the reasons for the delay.
9. In the case of Nicholas Kiptoo Arap Korir Salat –vs- Independent Electoral and Boundaries Commission & 7 Others (2014) e KLR, the Supreme Court of Kenya stated principles that govern the court’s discretion in an application for extension of time as follows;
1) “Extension of time is not a right of a 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 the 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 there will be any prejudice suffered by the respondents if the extension is granted;
6) Whether the application has been brought without undue delay; and
7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
10. In this matter, although the applicant sought extension of time, he never attempted to give a single reason for the delay or mention the delay in his supporting affidavit. All he argued was that the respondent was given her share of 7 acres which she sold to third parties and that therefore she cannot ask for more land. In short, the applicant did not support his prayer for extension of time or give reasons for the delay.
11. The orders sought to be appealed against were made on 20th September 2022. The instant application was filed on 22nd December 2023. No argument or reason for the delay was advanced by the applicant for the court to determine whether the delay had been explained to the court’s satisfaction. As the delay herein between 22nd September 2022 and 22nd December 2023, is a delay of 15 months, it is my view that the same is an inordinate delay. In view of the fact that no attempt has been made to explain the reason for the delay, I find and hold that the applicant does not deserve orders of extension of time.
12. Regarding the prayer that this court finds that the respondent was already rightfully allocated her 7 acres in accordance with the confirmed grant, my view is that this being a miscellaneous application, is not an appeal and therefore cannot be the forum for grant of substantive orders regarding the parties’ rights in regard to the suit property. This court has no jurisdiction to make declarations in regard to proprietary rights of parties without its original or appellate jurisdiction having been invoked. The court cannot make declarations regarding parties’ rights without an opportunity to have the claim subjected to scrutiny through cross examination. Therefore, I find and hold that the said prayer is incompetent.
13. On the prayer for temporary injunction, it is trite that a temporary injunction is granted where the applicant has demonstrated a prima facie case with chances of success; where if the injunction is not granted the applicant shall suffer irreparable loss and where the scale of convenience tilts in favour of grant of temporary injunction. (See Giella v Cassman Brown (1973) 358 EA). In the instant application, there is no pending case upon which a temporary injunction can be issued and therefore that prayer fails.
14. The upshot is that the application dated 21st December 2023 lacks merit and the same is hereby dismissed with costs to the respondent.
15. It is so ordered.
DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 9TH DAY OF JULY, 2025
In the presence of;
Mr. Makori and Mr. Munase for the applicant
Ms Rosebella Mukasia the respondent in person.
Court Assistant: M. Nguyai