1. By a notice of motion dated 24th June 2024, brought under sections 79G of the Civil Procedure Act; Orders 42 Rule 6; 50 Rule 6; 51 Rule 1 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya, the applicants herein seek leave appeal out of time against a judgment of Hon. V. Karanja PM delivered on 26th February 2024 in Iten PMC ELC Case No.32 of 2019. The applicant also seeks an order of stay of execution of the judgment pending the hearing and determination of the application and the intended appeal.
2. The application is premised on the grounds on its face and supported by the affidavit of Benjamin Ngetich Kipsang, the 1st plaintiff/applicant, sworn on 24th June 2024.
3. As can be discerned from the grounds on the face of the application and the averments in the supporting affidavit, the application is premised on the grounds that the applicants were dissatisfied with the judgment of the lower court hence are desirous to file an appeal against it; that owing to delay in obtaining typed proceedings and judgment from the lower court, the applicants were unable to file an appeal within the time provided by law for appealing; that the intended appeal raises several issues of law and fact hence arguable; that unless the orders sought are granted, the applicants may suffer irreparable loss and prejudice.
4. According to the applicants, the application has been presented timeously and they pray that in the interest of justice, the orders sought be granted.
5. The application is unopposed.
Analysis and Determination
6. This court has discretionary power to grant leave to file an appeal out of time. That power is granted by Section 79G of the Civil Procedure Act. In that regard, see the case of Edward Kamau & Another vs. Hannah Mukui Gichuki & Another where it was stated: -
“On whether this court should grant extension of time for filing an appeal, the applicable law is section 79G of the Civil Procedure Act…
Under the proviso to the said section, 79G of the Civil Procedure Act, an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time.”
The court further stated: -
“The Supreme Court in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, SC Appl 16/2014 laid down the following as the underlying principles that a court should consider in exercise of discretion to extent 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 on a case by case basis;
iv. Where 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.”
7. In the case of Gitau vs. Kagwi & another (Civil Appeal No.314 of 2023)(2024)KEHC 6320 (KLR)(30 May 2024 (Ruling) the Court of Appeal held:-
“In general the matter which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
8. In applying the principles/tests espoused in the above cited cases to the circumstances of this case, there was a delay of about four (4) months in bringing the application for leave to file appeal out of time. The applicants have given the reason for the delay in filing their intended appeal as delay in obtaining typed proceeding. Whereas the applicants have deponed that they made several requests for the typed proceedings, they have not adduced any evidence capable of proving that fact or showing when they ultimately obtained the typed proceedings. They have also not obtained a certificate of delay, as is usually the practice, to support their claim that there was delay in obtaining the typed proceedings. There being no evidence capable of proving that the applicants indeed applied for the typed proceedings and were unable to obtain them within the time provided in law for appealing or within a reasonable time, I find the delay in filing the intended appeal and/or the application for extension of time within which to file the intended appeal to be inordinate and not properly accounted for.
9. As to whether the intended appeal has chances of success, I have considered the decision of the court sought to be appealed vis-à-vis the filed grounds of appeal. I note that the decision of the lower court majorly turned on a question of law to wit the respondents are the registered owners of the suit property; that the respondents were registered as proprietors of the suit property following the process of determination of interests/rights to land provided for under the Land Adjudication Act, Cap 284 Laws of Kenya.
10. It emerged that the dispute between the applicants and the respondents culminated in an appeal to the Minister. Under section 29 of the Land Adjudication Act, the decision by the Minister is final.
11. It is trite law that the decision by the Minister can only be challenged by way of judicial review and not through a suit as the applicant appear to have done through the suit hereto. In that regard, see the case of Amarnath (Suing on behalf of the Estate of the Late Amarnath Gupta) v. Kazungu & 2 others (Civil Appeal E033 of 2021) (2023) KECA 1280 (KLR) (27 October 2023) (Judgment) where the court stated/held: -
“In regard to whether the ELC had the requisite jurisdiction to entertain the suit, there is no dispute that the suit was challenging the decision of the minister made pursuant to section 29 of the Act. That section under section 29(1)(b) provides:
“(b) and the minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.”
In addition to declaring that the decision of the minister is final, section 30 of the Act all together outs the jurisdiction of courts, providing as follows:
“30. Staying of land suits
(1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the register for that adjudication section has become final in all respects under section 29(3) of this Act.
The Act is clear that any person aggrieved by a decision made under section 26 of the Act must follow the process under section 29 and appeal to the minister. Once the minister, or the panel delegated to makes a determination, his order is final. That means the minister’s decision cannot be appealed, whether under the Act or in Court. The option the appellant had was to pursue judicial review process as provided under Article 47 of the Constitution, and the Fair Administrative Action Act, 2015 a statute enacted pursuant to Article 47 of the Constitution. he could not re-open the case and challenge it except through judicial review. The appellant was trying to undo the process he participated in using a process that is not provided for, and that is not allowed…”
12. In the circumstances, I find and hold that the intended appeal has no chances of success. Consequently, I find the application dated 24th June 2024 to be lacking in merits and I dismiss it with costs to the respondents.
13. Orders accordingly.
Dated, signed and delivered at Iten this 1st day of October, 2024.
Ruling read virtually in the presence of:
Mr. Simiyu holding brief for Mr. Ngigi Mbugua for the applicant
N/A for the respondent
Court Assistant: Alex