RHODA VS KENNEDY KITUKU ISIKA

1.The intended Appellant/Applicant filed the Notice of Motion dated 17th April 2024 seeking the following orders:
1)Spent
2)Spent
3) That pending the hearing and determination of this application this honourable court be pleased to issue orders of injunction restraining the respondent from transferring, selling, developing or interfering with plot no.3 Katulani/Itoleka (Kathukini) Musandi Market until this application is heard and determined.
4)That this honourable court be pleased to order for an extension of time to file and serve the memorandum of appeal.
5)That the cost of this application be provided for.

The Applicant’s Case

2.The application is supported by the affidavit of the applicant where she states that she was the 1st plaintiff in Kitui Chief Magistrates’ ELC case No. E085 of 2021 and was represented by the firm of A.M Kilonzi & Company Advocates. The suit was heard and judgment was delivered on 29th February 2024 in her absence.

3.The Applicant stated that her advocate did not update her on the judgment until she visited his office and learnt that the judgment had already been delivered.

4.Being dissatisfied with the way the advocate was handling the matter, she decided to file this application in person. The Applicant states that it is in the interest of justice and fairness that this application be allowed as it will not prejudice the respondent.

5.The parties made oral submissions during the hearing of the application. The applicant reiterated the contents of the application and further stated that the Respondent was in possession of the suit plot and had been since 2016 and sought to have him stopped from occupying the plot which she claims belongs to her deceased husband.

The Respondent’s Case
6.The Respondent opposed the application and filed an affidavit deposing that the applicant had time and the right to appeal within the stipulated period which they did not utilize. He stated that he was not served with the application before the court and was only called by the assistant chief of his area to attend court on 16th May 2024.

7.The Respondent restated that the plot in dispute belongs to him and he attached a rates clearance certificate paid in his name. He claims that the name of the plot was later changed and he requested the Court to summon the County registry boss to produce a court order that authorized the change of name in the records.

8.He further stated that the applicant was represented by an advocate of her own choice before the trial court and could not insist on new case files while other court files were pending over the same matter. He mentioned that he had been accused in the criminal cases 414/2016 and 527/2018 dismissed by the court for lack of evidence.

9.The Respondent submitted that the suit plot belonged to him and he had constructed on it. He stated that the dispute at hand has been heard and determined through various court cases criminal and succession cases.
Analysis and Determination

10.The court has considered the application herein and the submissions made by the parties. The two matters arising for determination are set out in prayer 3 and 4 of the application under consideration.
11.Section 79 G of the Civil Procedure Act provides that:
\"Every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.\"
12.Section 95 of the Civil Procedure Act provides that:
“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

13.In the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 the court held as follows:
    “It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”

14.In the case of Aviation Cargo Support Limited v St. Mark Freight Services Limited [2014] eKLR the court held that:
    \"The order whether or not to grant an extension of time or leave to file and serve record of appeal out of time is discretionary.  Such discretion is exercised judicially with a view to doing justice.  Each case depends on its own merit.  For the Court to exercise its discretion in favour of an applicant, the latter must demonstrate to the Court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the Court why it occurred and what steps the applicant took to ensure that it came to Court as soon as was practicable.  In the normal vicissitudes of life, deadlines will be missed even by those who are knowledgeable and zealous.  The Courts are not blind to this fact.  When this happens, the reason why it occurred should be explained satisfactorily including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to file out of time.”

15.The applicant relies on the ground that judgment was read by the Court in her absence and her advocate did not advise her of the said judgment. The Respondent has opposed the application of the grounds set out in the replying affidavit.

16.The court has considered the the guiding principles set out under Section 79 G of the Civil Procedure Act and the ones set out in the legal authorities cited that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay. In this case, judgment was delivered on 29th February 2024 and the application herein was filed on 17th April 2024, forty-eight days from the date of judgment. The delay was 18 days from the date the appeal was supposed to be filed according to the court\'s computation. In the court\'s view, such a delay is not unreasonable or inordinate.

17.The second question is whether the applicant has satisfied the court that they had good and sufficient cause for not filing the appeal in time. In other words, what was the reason for the delay$1 The Applicant stated that the trial court delivered judgment on 29th February 2024 and she was waiting for her advocate to advise of the judgment. The advocate did not advise her and she only got to know about it when she visited the advocate\'s office.

18.This averment by the Applicant has not been controverted by the Respondent and the court finds that the delay in coming to court has been explained satisfactorily including the steps taken to ensure compliance with the law by coming to Court to seek extension of time or leave to file out of time. The court further considered the fact deponed to by the Applicant that when she did not receive information on the judgement, she went to make inquiries from the advocate and took steps in filing the present application.

19. The court has also looked at the draft Memorandum of Appeal and is of the view that the said grounds are worthy of consideration by this court and cannot be said to be frivolous.

20.On whether an order of injunction sought against the Respondent should be issued, the court has considered the provisions of Order 42 Rule 6 (6) of the Civil Procedure Rules which provide for the issuance of an order of injunction pending appeal and states that;
Notwithstanding anything contained in sub-rule (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 a subordinate court or tribunal has been complied with.
21.The court notes that the Applicant did not comply with the procedure for filing an appeal to this court since the appeal was not filed within the 30 days as provided under Section 79 G of the Civil Procedure Act. No appeal is pending before this court on which an order of injunction can be anchored. For this reason, the Applicant is not entitled to the prayers sought.

22.Further, the court considers that the Applicant has not laid any basis for the application and the grant of an order of injunction. No claim or proof of ownership of the suit land has been made and no evidence has been shown that the property in dispute is in danger of being wasted,     damaged or alienated by the Respondent or wrongfully sold.

23.In the Court\'s view, the Applicant has not shown a prima facie case with a probability of success as laid out under Order 40 Rule 1 of the Civil and 2 Procedure Rules and in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358.

24.From the foregoing, the court makes the following orders in disposition of the Notice of Motion dated 17th April 2024;
1)Leave is hereby granted to the applicant to file an appeal out of time from the Judgment of the Senior Principal Magistrate the Honourable D.W Mburu SPM delivered on 29th February 2024 in CMELC E085 of 2021.
2)The Memorandum of Appeal is to be filed within Fourteen (14) days from the date hereof.
3)Costs of the application herein are awarded to the Respondent.
4)Prayer 2 of the application is dismissed.
Dated, Signed and Delivered at Nairobi this  26th Day of  September 2024
L. G. KIMANI
JUDGE
Ruling read in open Court and virtually in the presence of
No attendance for the Applicant
No attendance for the Respondent