REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MIGORI
ELCC NO. 214 OF 2017
ELIJAH OUKO MATAGARO ……………………………...………………. 1ST PLAINTIFF
BENARD MOEGI OUKO …………………………………..……………… 2ND PLAINTIFF
VERSUS
ROSELYNE DOLA OUKO ……………………….……………………… 1ST DEFENDANT
AARON TAFARI OUKO ……………………….……………………….. 2ND DEFENDANT
ANDREW ATINDA OUKO ………………………….………………….. 3RD DEFENDANT
JOHN OTIENO OGALLO ………………………………………………. 4TH DEFENDANT
DORINE ATIENO OTIENO ………………………...…………………… 5TH DEFENDANT
RULING
(On application to file a Notice of Appeal out of time; Section 7 Appellate Jurisdication Act; application allowed) 1. The application before me is that dated 2 July 2024 filed by the plaintiffs. The substantive prayers are firstly to be allowed to change counsel to M/s Kyale Mumo & Associates Advocates after judgment; secondly they seek orders of extension of time to file a notice of appeal out of time arising from the judgment of 14 February 2024; and finally, an order of stay of execution of the judgment.
2. The application is based on grounds inter alia that the applicants could not log in on 14 February 2024 due to network difficulties and their advocate was also not present at the time judgment was delivered. They aver that their counsel made multiple attempts to procure the judgment in vain. They feel that they have a good appeal. The supporting affidavit is sworn by Elijah Ouko Matagaro, the 1st plaintiff, and he has more or less elaborated on the foregoing.
3. The 1st defendant/respondent swore a replying affidavit vide which she deposed that she does not wish to oppose the motion. She is in fact in support of it.
4. The 2nd and 3rd defendants/respondents filed a preliminary objection and a replying affidavit filed by the 2nd respondent. He inter alia contended that this Court does not have jurisdiction to entertain the application. He has also questioned the authority annexed purporting to have been signed by the 2nd plaintiff as it purports to have been signed in Kiambu yet it is said that he lives in the USA. He has deposed that the plaintiffs were aware of the date of judgment and nothing stopped them from following up with the court if it was an issue related to network. They also raised other issues which appear to contest the veracity of a good appeal by the applicants. In addition to the replying affidavit there was also filed a notice of preliminary objection contending that this court has no jurisdiction in light of Rules 4 and 77 of the Court of Appeal Rules, 2022. They have raised issue regarding the affidavit, which is said to offend Section 5 of the Oath and Statutory Declarations Act.
5. The 4th & 5th respondents did not file anything towards the application, Mr. Rautta Athiambo, learned counsel, stating that he would adopt the position of the 2nd & 3rd respondents to oppose the motion.
6. Nothing was filed by the Attorney General for the 6th respondent .
7. I have considered the application , the preliminary objection and the submissions filed. I had directed that the preliminary objection be subsumed within the hearing of the application so this ruling covers both the application and the preliminary objection.
8. At the outset, I see no issue with allowing the law firm of M/ Kyale Mumo & Associates advocates to come on record for the plaintiffs after judgment. That prayer is allowed.
9. The other substantive prayer is for leave to file a Notice of Appeal out of time which I think forms the gist of the application. It is of course part of the preliminary objection that this court has no jurisdiction. It was indeed submitted by counsel for the 2nd and 3rd defendants that this court has no jurisdiction to extend time to file the notice of appeal and counsel made reference to some decided cases which he unfortunately failed to annex. I was also referred to Rule 4 of the Court of Appeal Rules which provides as follows :
4. Extension of time
The Court may, on such terms as may be just, by order, 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, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.
10. It was thus urged, relying on the above rule, that it is only the Court of Appeal that has the jurisdiction.
11. I am not persuaded by the above because Section 7 of the Appellate Jurisdiction Act, Cap 9, Laws of Kenya, provides as follows :
7. Power of High Court to extend time
The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:
Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.
12. It will be seen from the above that the said section makes provision for the High Court (and this must be read to include courts of equal status including this court) to extend time for giving notice of intention to appeal. I cannot see how the Rules can be read and interpreted in a manner that supercedes a substantial provision of the Act. I am persuaded that a reading of Section 7 above gives this court power to extend time to file a notice of appeal out of time.
13. There is the other point raised regarding the authority purportedly given by the 2nd plaintiff. I see no issue. Even if I am to strike out the authority, the application would still remain valid as filed by the 1st plaintiff.
14. Should I exercise the discretion to extend time ? I have looked at the reasons given. It was said that counsel was not present and he did not communicate the judgment to the applicants. The applicants themselves state that owing to difficulties in the network they were unable to join the court proceedings when judgment was delivered. They were also unable to get hold of the judgment and they have raised issues touching on the availability of the court file after judgment was delivered. I will give them benefit of doubt. In any event, the dispute is over land and I would lean towards giving a party opportunity to exercise the right of appeal. I will therefore extend time for the filing of the notice of appeal. The same be filed and served within Seven (7) Days from the date hereof.
15. The other prayer in the application relates to stay pending appeal. I would think that this prayer ought to have been raised separately and in a different application after the notice of appeal is filed. I will not address the prayer within this application. If the applicants want stay pending appeal, let them first file the notice of appeal, then they can file a distinct application for stay pending appeal for consideration.
16. The last issue is costs. There will be no orders as to the costs of this application.
17. Orders accordingly.
DATED AND DELIVERED THIS 18 DAY OF FEBRUARY 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT MIGORI
Delivered in the presence of :
Mr. Rono for the plaintiffs/applicants
No appearance for Mr. Oduk for the 1st defendant/respondent
Mr. Holly for the 2nd & 3rd defendants and h/b for Mr. Rautta for the 4th & 5th defendants
No appearance for the Attorney General for the 6th defendant