Introduction.
1. The notice of motion application dated 1st March 2024 is stated to be brought under Article 47 of the Constitution, Section 79G of the Civil Procedure Act, Order 50 Rule 5 and Order 40 Rules 1 and 4 of the Civil Procedure Rules seeking the following orders;
a) That the applicant be allowed to file and serve of its memorandum of appeal out of time;
b) That pending the hearing and determination of this application, this court does issue a temporary injunction restraining the defendants from executing the judgment delivered on 1st August 2023;
c) That pending the hearing and determination of this appeal, this court does issue a temporary injunction restraining the defendants from executing the judgment delivered on 1st August 2023;
d) That costs be in the course.
2. As can be discerned from the grounds on the face of the application and affidavit sworn in support thereof, by Mathew K. Komen on 1st March 2024, it is deponed that a notice of appeal was filed on 25th August, 2023; that the Memorandum of Appeal was not filed as the state counsel handling the matter was transferred; that this mistake was only discovered on 28th February 2024 when the file was assigned to another state counsel; that the appellant is desirous of prosecuting the appeal if given the opportunity by the court.
3. He further deposes that the suit property is currently used as a public school and ought to be protected; that mistakes by counsel should not be meted on the client; that unless this application and appeal is allowed, the suit property stands to be wasted. He urges the court to allow the application and deem the annexed draft memorandum of appeal as duly filed.
4. The application is opposed vide the replying affidavit of George Kibet Chelangat sworn on 19th March, 2024. He deposes that the application is frivolous, vexatious and devoid of merit as no cogent reason has been given explaining the inordinate delay; that judgment was delivered on 1st August 2023 and no certificate of delay has been attached as proof that the proceedings were not typed within time. It is his contention that the prayer for temporary injunction ought to fail as the applicant did not seek an order for stay in the trial court. He urges the court to dismiss the application with costs.
SUBMISSIONS
Appellant’s Submissions
5. In their submissions filed on 3rd May 2024, the applicant/appellant gave a background of the case and framed the following issues for determination;
i. Whether the appellant/applicant should be granted leave to file and serve its Memorandum of Appeal out of time.
ii. Whether the appellant/applicant is entitled to an order of temporary injunction.
iii. Whether stay of execution of the judgement issued on 1st August 2023 should be stayed.
6. On the first issue, it is submitted that the appellant has met all the conditions for extension of time to file an appeal and relied on the cases of Sayers v Clarke Walker (2002) EWCA and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (2014) e KLR, where the courts set down the principles to be considered when exercising discretion on whether to grant leave to file an appeal out of time.
7. The applicant submits that the appeal has high chances of success and that delay in filing the Memorandum of Appeal was not deliberate but was occasioned by unforeseen turn of events as highlighted in the supporting affidavit. He urges the court to consider that there is a public school on the suit property which will be greatly affected if the court does not exercise its discretion and extend time to file the appeal.
8. On the second issue, it is submitted that the application meets the conditions for grant of a temporary injunction as set out in the cases of Giella v Cassman Brown (1973) EA 358 at 360, Nguruman Limited v Jan Bonde Nielsen & 2 others CA (2014) e KLR, Mrao Limited v First American Bank of Kenya (2003) e KLR and Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) e KLR. The applicant submits that their client and the entire community stands to suffer irreparable harm that cannot be compensated by award of damages if an order of temporary injunction is not granted.
9. On the third issue, it is submitted that the court has discretion to grant the orders sought but the discretion should be exercised with an aim to balance the interests of the parties involved and achieve its purpose. They relied on the case of Butt v Rent Restriction (1979).
10. The respondent did not file written submissions.
Analysis and Determination.
11. After carefully considering the application, response and submissions thereto, I find the sole issue for the Court’s determination to be whether the applicant has made up a case for being granted the orders sought.
12. Section 79 G of the Civil Procedure Act provides that appeals from the subordinate courts must be filed within a period of 30 days from the date of decree or order from which the appeal lies. The proviso to that section, however allows for extension of time to appeal where good and sufficient cause has been shown (emphasis own). As such, extension of time within which an appeal ought to be filed is a matter of judicial discretion.
13. Enlargement of time is provided for under Order 50 Rule 6 of the Civil Procedure rules as follows;
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed...”
14. The Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 (2014) eklr laid down principles that courts should consider when exercising discretion on whether to grant leave to file an appeal out of time.
(i) “Extension of time is not a right of a party. It is equitable remedy that is available to a deserving party at the discretion of the court;
(ii) The party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
(iii) As to whether the court should exercise the discretion to extend time, is a consideration to be made a case by case basis;
(iv) Whether there is a reason for the delay; the delay should be explained to the satisfaction of the court;
(v) Whether there will be any prejudice to be suffered by the respondents if the extension is granted;
(vi) The application should have been brought without undue delay; and
(vii) In certain cases, like election petitions, public interest should be a consideration for extending time.”
15. In applying the law and the aforesaid principles to the circumstances of this case, it is noted that judgment was delivered on 1st August 2023 and a notice of appeal filed on 25th August 2023 but no memorandum of appeal was filed. An explanation has been offered by the applicant that failure to file the Memorandum of Appeal was occasioned by the transfer of the state counsel handling the matter.
16. I have taken the liberty to peruse the lower court file and noted that when the matter was proceeding before the trial court, the state counsel handling the matter was Mr. Weda. In the application before the court, it is Ms Jepkemei who is on record. It is also noted that when judgement was delivered on 1st August 2023, the respondent/applicant was not represented.
17. The court is aware that the office of the Attorney General is most times overwhelmed and it’s even worse when a staff member is transferred. Handing over is not as efficient as in a private law firm and I can understand the difficulty the new state counsel may have had when the file was given to her. Under the circumstances, I find the explanation by the applicant satisfactory and the mistake excusable which mistake should not be meted on the client. I have also taken into consideration the public interest in the matter in that there is a public school built on the suit property and looked at the annexed Memorandum of Appeal which raises issues of legality of the title held by the respondent which issues I find arguable.
18. The appellant has also sought an order of temporary injunction to restrain the plaintiff/respondent from executing the judgment.
Order 42 Rule 6(6) provides;
“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from subordinate court or tribunal has been complied with.”
19. In the case of Muchiri v Rutere (Environment & Land Case 319 & 316 of 2017 (Consolidated)) [2023] KEELC 22377 (KLR) the court of Appeal citing the case of Venture Capital and Credit v Consolidated Bank of Kenya, (2004) 1 EA 357 stated:
“As regards the second prayer, the court’s jurisdiction to grant an injunction pending an appeal is discretionary and such discretion is exercised judicially and not in whimsical or arbitrary fashion. (see Madhupaper International Ltd v Kerr 1985) KLR 840 at 847 paragraph 35). In that case, Madhupaper) the court said at 846 paragraph 30; “There are cases, however, where it would be wrong to grant an injunction pending appeal. These would include where the appeal is frivolous or to grant it would inflict greater hardship than it would avoid. And there will be others which we have not experienced yet. As a general rule, a court ought to exercise its best discretion in a way so as to prevent the appeal, if successful, from being nugatory. (See Butt v Rent Restriction Tribunal (1982) KLR 417). And in order to be entitled to an order for maintenance of status quo pending appeal, the applicant must show that a reasonable argument can be put forward in support of the appeal – J.K Industries Ltd v Kenya Commercial Bank Ltd (1982 – 88) 1 KAR 1088. Moreover, the case of Shitukha Mwamodo and others (1986) KLR 445 shows that the principle stated in Giella v Cassman Brown Co. Ltd (1973) EA at 360 guide both the High Court and the Court of Appeal in deciding whether or not to grant a temporary injunction.”
20. The court further observed: -
“Therefore the object of an injunction is to keep things in status quo so that if after the determination of the appeal the appellant obtains judgment in his favour, the respondent will have been prevented from dealing in the meantime in the property in such a way as to make the judgment ineffectual. It is however clear that in deciding whether or not to grant the injunction the court would exercise discretion and take into consideration a number of factors, including whether the appeal is frivolous or not whether granting the injunction would inflict greater hardship against the respondent than it would avoid. The applicant must also show that to refuse the injunction would render the appeal nugatory. In addition, the court should be guided by the principles in the Giella case.” (emphasis own)
21. The Court being satisfied with the reason advanced by the applicant of not filing the Memorandum of Appeal within the prescribed time and having found that the appeal is arguable and that there is a public school built on the suit property, this court finds there is need to preserve the suit property to avoid any interference with the land which may occur if Judgment is executed.
22. Consequently, the court allows prayer (a) in the application dated 14th March 2024 and grants an order of status quo pending hearing and determination of the appeal.
23. Costs of the application to abide the outcome of the Appeal.
24. Orders accordingly.
Dated, signed and delivered at Iten this 21st day of June, 2024.
Ruling delivered virtually in the absence of;-
N/A for the appellant/applicant
N/A for the respondent
Court Assistant: Ian