RULING
1.The applicant vide an application dated the 21st June 2022 seeks the extension of orders issued vide ruling delivered on 14th October 2021. In the said Ruling the learned Honourable Lady Justice F. Muchemi granted the Applicant the following orders:-
a)That the Applicant is hereby granted leave of seven (7) days to file an appeal out of time in default of which the orders will automatically be vacated
.b)That the orders of stay pending the filing and determination of the Apepal are hereby granted on condition that the applicant deposits within thirty days (30) days Ksh. 300,000/= in court as security for costs.
c)that the costs of this application shall be in the cause.
2.In determining this application, I have noted that the applicant has not filed submissions in support of the Application despite numerous orders of the court requiring parties to do so.
3.The 1st and 2nd Respondents filed their submissions on 19th December 2022 and the 3rd Respondent on 29th December 2022.
4.The record of the court on 16th November 2023 indicates the matter came up before my brother Justice M. Muya when he reserved the matter for ruling on the 21st March 2024.
5.The court had on the 14th December 2022 granted MR. GACHERU for the applicant sought leave to file and serve a supplementary Affidavit and submissions upon his request. The record does not contain any such supplementary Affidavit or submissions by the Applicant thus the court is only left to consider the application and submissions by the Respondents.
6.Notably, when the matter came up before this court on 7th June 2024 the applicant counsel was absent and I reserved the matter for a Ruling at the request of Ms. Muthoni for the 1st and 2nd Respondents. Ms Muthoni informed the court that the 3rd Respondent had since passed on.
7.The task of this court in determining this application is to consider the reasons advanced by the Applicant for seeking the extension of the orders of the learned Honourable Lady Justice F. Muchemi on 14th October 2021.
8.It is clear from a reading of the orders of the Judge that the learned Judge granted a conditional stay order.
9.The applicant was required to file the Appeal within 7 days from the date of the order failing to which the orders would lapse or as the Judge put it the orders would stand automatically vacated. It therefore follows that by failing to comply with that order within the time specified by the court, the order lapsed and in effect the was nothing left for extension by this court since the review was sought long after the lapse of the order.
10.It is important to point out here that the Applicant filed the instant application on 21st June 2022 long after the 7 days allowed by the court had lapsed.
11.The application is clear that the Applicant did not comply with the order for the deposit of a sum of Ksh, 300,000/= as security for costs. It is that order that this court is asked to consider varying.
12.The record does not show that the Applicant to have complied with the first order for filing of the Appeal. If as is manifest from the record before me that there is no appeal then it follows there cannot be an extension of stay pending the hearing and determination of a non-existent appeal. The order of stay was conditioned on the deposit for security for costs. It therefore follows that if the security for costs were not paid by the Applicant as stated in the application the stay order has since lapsed as well.
13.It is a well settled principle in law that courts do not issue orders in vain. If the Applicant truly intended to lodge an appeal she would immediately have done so after leave was granted.
14.Secondly, if indeed she was experiencing difficulties with meeting the condition of Ksh. 300,000/= as security for costs, why then wait for more than seven months to approach the High Court for review of the orders?
15.The applicant as a beneficiary of an equitable remedy should not have gone to sleep. When the applicant realized that she was unable to comply with the order for whatever reason she should have immediately approached the court for review of the orders or at least for the extension of the period within which to comply with the conditions set by the judge.
16.Equity does not come to the aid of the indolent. In Salat Vs. Independent Electoral & Boundaries Commission & 7 Ohers [2014] KLR-SCK the court held as follows on the extension of time to file an appeal out of time:-
a)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.
- A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.
- Whether the court ought to exercise discretion to extend time, is a consideration to be made on a case by case basis.
- Whether there is reasonable cause for the delay, which ought to be explained to the satisfaction of the court.
- Whether there would be any prejudice suffered by the respondents if the extension was granted;
- Whether the application had been brought without undue delay; and
- Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.
16.The Supreme Court has thus developed a checklist of principles to consider in applications for extension time.
17.In the instant matter the Applicant having been granted an order extending time for the filing of an appeal ought to have acted with utmost urgency or expedition. It is pointless for a court to grant an order for extension of time to a party and the beneficiary of the court’s gratuitous act retires to sleep and return to court after 7 months to plead with the court to review its decision.
18.The court in granting the order extending time for the filing of the appeal did so in exercise of discretion. In order for this court to interfere with the exercise of discretion of the judge, the court must be persuaded that there are sound reasons for review of the judge’s decision.
19.In considering the application of the applicant, I have to be persuaded that there are plausible reasons for the Applicant not to have complied with the orders by the judge.
20.As I have indicated the applicant herein has approached this court for review of the order for security for costs well after 7 months. No reasons have been advanced to justify the delay in presenting the application. It is important for this court to emphasize that the nature of this matter calls for expeditious disposal and none of the parties should be allowed to delay the just conclusion of the same. It is in the interests of justice that succession matters be dealt with expeditiously to free families from protracted family disputes. The family being the basic unit of society must be protected by ensuring that disputes between family members are expeditiously and justly resolved.
21.The applicant cannot be allowed to have the luxury of getting equitable remedies against the Respondents and failing to act on them. To allow parties to act as the Applicant has done in this matter would be to encourage conduct that borders of an abuse of court process. Parties must utilize orders for the purpose they obtained them for and if for any reason and has reason to seek a review of a court order that must be done within reasonable time.
22.The Supreme Court in Salat Vs. Independent Electoral And Boundaries Commission & 7 Others [2014] – KLR-SCK emphasizes that where there is delay that delays must be reasonable and explained to the satisfaction of the court.
The applicant in this matter should have explained to this court why it took her over 7 months to return to court to seek review.
The court must remain mindful of the prejudice that Respondents are likely to suffer.
23.The judgement the applicant sought to appeal against was delivered on 6th January 2021 well over 4 years and 5 months ago. The Respondent have been forced to remain in this court by the action of the Applicant by failing to comply with the orders of the Judge that he now seeks extension has kept the Respondents in the corridors of justice while acting in a rather lackadaisical manner. The applicant has held the respondents captive and denied them the fruits of their judgment.
24.The review of a Judge’s decision must be confined to an error apparent on the ace of the record or upon the discovery of a new and important matter of which after the exercise of due deligence was not within the knowledge of the applicant
In Republic Vs Public Procurement Administrative Review Board & 2 others (2018) eKLR it was held:
“12. Section 80 gives power of review and order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds.
- discovery of new and important matter or evidence which after the exercise due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) on account of some mistake or error apparent on the face of the record, or
(c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay”.
25. In the instant application the applicant has not demonstrated that she was unaware of her incapacity to deposit the Ksh. 300,000/= at the time the order was made or soon thereafter.
Similarly, the reason for the lapse of 7 months before presenting this application has not been adequately explained.
26.It is this court’s finding that the application by the Applicant has no merit and the same is ripe for dismissal.
27.To purport to extend the stay, which as I have stated above, has already lapsed or even to purport to review the orders of the judge would be to act in vain.
28.I therefore decline to grant the prayers sought, dismiss the application in its entirety with costs to the Respondents.
It is so ordered.