Case ID:174776

Lazarus Kibui Ndegwa v Henry Oryem Okello (Suing In His Capacity As The Legal Representative Of Labule Okello Lutwa (Deceased) [2021] eKLR

Case Metadata

Case Number:

Civil Application E020 of 2020

Parties:

Lazarus Kibui Ndegwa v Henry Oryem Okello (Suing In His Capacity As The Legal Representative Of Labule Okello Lutwa (Deceased)

Date Delivered:

07 May 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Stephen Gatembu Kairu

Citation:

Lazarus Kibui Ndegwa v Henry Oryem Okello (Suing In His Capacity As The Legal Representative Of Labule Okello Lutwa (Deceased) [2021] eKLR

Case History:

Being an application for extension of time in respect of the lodging, hearing and determination of an appeal out of time in an intended appeal from the Judgment and Decree of the Environment and Land Court at Nairobi (K. Bor, J.) dated and delivered on 26th July, 2018 in ELC Case No. 1784 of 2007 formerly Nai.HCC Case No. 141 of 2006

Court Division:

Civil

County:

Nairobi

History Docket No:

ELC Case No. 1784 of 2007 formerly Nai.HCC Case No. 141 of 2006

History Judges:

Antonina Kossy Bor

History County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GATEMBU, JA (IN CHAMBERS))

CIVIL APPLICATION NO. E020 OF 2020

BETWEEN

LAZARUS KIBUI NDEGWA.............................................................APPLICANT

AND

HENRY ORYEM OKELLO

(Suing in his capacity

as the legal representative of

LABULE OKELLO LUTWA (DECEASED)...............................RESPONDENT

(Being an application for extension of time in respect of the lodging, hearing and determination of an appeal out of time in an intended appeal from the Judgment and Decree of the Environment and Land Court at Nairobi (K. Bor, J.) dated and delivered on 26

th

July, 2018

in

ELC Case No. 1784 of 2007 formerly Nai.HCC Case No. 141 of 2006)

*******************

RULING

1. In his application dated 20

th

July 2020 brought, mainly under Rule 4 of the Court of Appeal Rules, the applicant Lazarus Kibui Ndegwa seeks leave to file his appeal against the judgment of the Environment and Land Court (

K. Bor, J.

) delivered on 26

th

July 2018 out of time; and that the time for filing the appeal be extended.

2. In his affidavit in support, he deposes that he promptly applied for copies of the proceedings and judgment on 27

th

July 2018; that he filed and served a notice of appeal on 2

nd

August 2018; that by the time the proceedings and judgment were released to him on 3

rd

March 2020, the period of appeal had already lapsed; that he believes he has a prima facie case against the respondent; that there were “

reasons beyond

[his]

control

” that could not allow him to appeal within time; that the delay was on the part of the court as it did not release the proceedings and judgment in time and the delay is not inordinate; and that he has good grounds of appeal as demonstrated in his draft memorandum of appeal and should be granted an opportunity to appeal. Among the documents exhibited to his affidavit are: the letter bespeaking typed proceedings and judgment; notice of appeal dated 2

nd

August 2018, and certificate of delay dated 10

th

March 2020 certifying that the “

time taken by the court to

prepare and supply the certified copies of the proceedings was from 14

th

day of August 2018 to 20

th

day of February 2020 being 548 days

” and that the certified proceedings were availed to the applicant on 3

rd

March 2020.

3. The advocates for the respondent, Onsando Ogonji & Tiego Advocates were served with notice of hearing on 12

th

April 2021 and acknowledged receipt of service in a letter addressed to the Deputy Registrar dated 13

th

April 2022. They however claimed in the same letter that they had not been served with the application and that they are

“not linked to the electronic

portal”

. The advocates for the applicant S. J. Nyang’ & Company Advocates in their letter in rejoinder dated 23

rd

April 2021 addressed to the Deputy Registrar of the Court have countered that claim and maintain that the application was served on 20

th

July 2020 and that the respondent’s counsel received the same, signed and stamped a copy under protest. I have no reason to doubt that service of the application was affected. The Deputy Registrar also indicates there was also service of the application on 23

rd

April 2021.

4. In their submissions in support of the application, the advocates for the applicant submit that the respondent is in the process of the evicting the applicant from the suit property known as L.R. No. 209/8000/136 situated in New Muthaiga Nairobi; that the intended appeal has high chances of success as the respondent gave contradictory evidence and did not establish ownership of the property; that the court granted ownership of the property to the respondent

“from the backdoor”

as ownership was not proved.

5. I have considered the application and the submissions. In

Fakir Mohamed vs. Joseph Mugambi & 2 others [2005] eKLR

Waki

,

J.A

stated that:

“The exercise of this Court’s discretion under Rule 4… is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factors: See Mutiso vs. Mwangi Civil Appl. NAI. 255 of 1997 (UR),

Mwangi vs. Kenya Airways Ltd

[2003] KLR 486,

Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General

Civil Appl. NAI. 8/2000 (UR) and

Murai v Wainaina

(No 4) [1982] KLR 38.”

6. More recently, in

Nicholas Kiptoo Arap Korir Salat vs. IEBC

& 7 others

,

Supreme Court Application No. 16 of 2014[2014] eKLR

the Supreme Court of Kenya stated that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; and that delay should be explained to the satisfaction of the court. Other considerations include public interest; whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay.

7. In effect, although the court has unfettered discretion under Rule 4 of the Court of Appeal Rules, that discretion must be exercised judicially, and each case must be considered on its own facts. In this case, the dispute over the suit property between the parties has been in court for a long time. The transcript of proceedings shows the matter has been in court for over 14 years. Undoubtedly, the applicant filed a notice of appeal within the time period prescribed and also applied for typed proceedings and judgment which he says he received on

10

th

March 2020. Based on the certificate of delay exhibited, the period of 548 days between 14

th

August 2018 and 20

th

February 2020 was required for the preparation of the typed proceedings and judgment. Under the proviso to Rule 82, the time required for the preparation and delivery of a copy of the proceedings to the appellant is to be excluded.

8. The appeal should have been instituted by lodging the memorandum and record of appeal within 60 days of the date when the notice of appeal was lodged. The notice of appeal was lodged on 2

nd

August 2018. The copy of proceeding was availed to the applicant on 3

rd

March 2020. Sixty days hence, the applicant should have filed the memorandum and record of appeal by 4

th

May 2020 at the latest. He did not do so and presented this application on 20

th

July 2020. That is a delay of 77 days, approximately two and half months, that is not at all accounted for and no explanation is offered for that delay. Sympathetic as I might, in the absence of any explanation for that delay which is inordinate, I have no basis for exercising the court’s discretion in the applicant’s favour and I therefore decline to allow the application.

9. Consequently, the application dated 20

th

July 2020 is hereby dismissed with no orders as to costs.

Dated and delivered at Nairobi this 7

th

day of May, 2021.

S. GATEMBU KAIRU, FCIArb

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR