Case ID:176294

John Karani Mwenda v Japhet Bundi Chabari [2021] eKLR

Case Metadata

Case Number:

Civil Appeal Application 4 of 2020

Parties:

John Karani Mwenda v Japhet Bundi Chabari

Date Delivered:

04 Jun 2021

Case Class:

Civil

Court:

Court of Appeal at Nyeri

Case Action:

Ruling

Judge(s):

Fatuma sichale

Citation:

John Karani Mwenda v Japhet Bundi Chabari [2021] eKLR

Case History:

(Being an Application for Extension of Time for giving Notice/filing Notice of Appeal and for leave to appeal out of time from the Judgment and Decree of Njoroge J delivered on 14th January 2015.) IN (Meru Civil Appeal No.2 of 2011)

Court Division:

Civil

County:

Nyeri

History Docket No:

Meru Civil Appeal No.2 of 2011

History Judges:

Peter Muchoki Njoroge

Extract:

0

Case Outcome:

Application allowed

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 NYERI

[CORAM: SICHALE J.A]

CIVIL APPEAL APPLICATION NO. 4 OF 2020

BETWEEN

JOHN KARANI MWENDA..................................................................APPLICANT

AND

JAPHET BUNDI CHABARI...........................................................RESPONDENT

(Being an Application for Extension of Time for giving Notice/filing Notice of Appeal and for leave to appeal out of time from the Judgment and Decree of Njoroge J delivered on 14

th

January 2015.)

IN

(Meru Civil Appeal No.2 of 2011)

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

RULING OF THE COURT

By a motion dated

24

th

January 2020,

brought pursuant to the provisions of

Rule 7 of the Appellate Jurisdiction Act, CAP 9 of the Laws of Kenya, Rule 4 of the

Court of Appeal Rules

,

John Karani Mwenda

(the applicant)

seeks the following

orders:

“

1. Spent.

2. THAT the time for filing the Notice and Memorandum of Appeal in respect of the judgment made in the High Court of Kenya at Meru on 14

th

day of January, 2015 in Civil Appeal No.2 of 2011 be extended.

3. THAT this Honourable Court be pleased to define a time span within which to file the Record of Appeal.”

The motion is supported on the grounds on the face of the motion and an

affidavit sworn by

John Karani Mwenda

who deponed

inter alia

that judgment

was entered against him in Meru Civil Appeal No. 2 of 2011 on 14

th

January 2015

and being aggrieved and dissatisfied with the same, he wished to appeal the same

to the Court of Appeal. That, he did not appeal against the same due to reasons

set out in the affidavit

inter alia

that he had all along had every intention of

appealing the decision of the High Court in a fora that he was misadvised to use

more particularly vide Constitutional Petition No. 4 of 2015, in the High Court

of Kenya at Meru and that he should not be penalized for the faults of his former

advocates and that intended appeal was arguable and raises serious matters of

law.

The application was opposed vide a replying affidavit sworn by

Japhet

Bundi Chabari

(the respondent)

who deponed

inter alia

that the applicant is

bound by the provisions of the law to proffer adequate and concrete reasons for

the delay in preferring an appeal and to demonstrate the existence of a strong

appeal and that a delay of 5 years was grossly inordinate and laying blame on

counsel for adopting a legal procedure that another advocate may consider

inappropriate was not a sufficient reason to allow this court exercise discretion

in favour of the applicant and that he stood to suffer immense prejudice as he

was now the registered owner of the suit property pursuant to a legally sound

judicial process.

It was submitted for the applicant that the discretion of a judge under Rule

4 of the Court of Appeal Rules was wide and unfettered and that discretion must

be exercised judicially and upon reason rather than arbitrary and capriciously on

whim and/or sentiment and that the fundamental factors that the court takes into

account while considering an application for extension of time include; length of

the delay, reasons for the delay, the possible prejudice if any that each party

stands to suffer, the conduct of the parties, the need to balance the interests of

party who has a decision in his favour, the need to protect a party’s opportunity

to fully agitate its dispute against the need to ensure a timely resolution of the

dispute, the public interest issues implicated in the appeal and whether prima

facie the intended appeal has chances of success or is a mere frivolity. It was

further submitted that the exercise of discretion depends on the circumstances

of each case and that the justice of this matter dictates that the instant application

be granted since the subject matter involves land which is a very emotive and

sentimental issue in Kenya.

On the other hand, it was submitted for the respondent that the issue for

consideration in an application of this nature are the length of the delay, the

reasons for the delay and the chances of appeal succeeding (possibly) and that the

application under consideration lacked merit and should be dismissed with costs.

I have carefully considered the motion, the grounds thereof, the

supporting affidavit, the replying affidavit, the rival submissions by the parties

and the cited authorities.

The applicant’s motion is brought

,

under

Rule 4

of this Court’s Rules. The

said Rule provides:

“

4.

Extension of time

The Court may, on such terms as it thinks 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.”

The principles upon which this court exercises its discretion under Rule 4 are

firmly settled. The court has wide unfettered discretion whether to extend time

or not. However, in exercising its discretion the court should do so judiciously,

and in accordance with the principles set out in

Leo Sila Mutiso V. Rose Hellen

Wangari Mwangi

–

Civil Application No. Nai 251 of 1997

where the court stated;

“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated 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 reasons 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.”

In the instant case it is not in dispute that the impugned judgment was

delivered on 14

th

January 2015 a period of over 6 years from the date of the

judgment. Certainly a period of over 6 years is no doubt inordinate. The applicant

contends that the reasons for the delay is because he was misadvised by his

former advocates, culminating in filing of Constitutional Petition No. 41of 2017

which was also dismissed and that mistake of his counsel should not be visited

upon him. With regard to the chances of the appeal possibly succeeding, the

applicant submitted that the learned judge should have dealt with the issue of

jurisdiction and find that the tribunal did not have jusdiction to deal with

ownership of land and order a transfer to another party. As regards prejudice, it

was submitted that the applicant had been in occupation for 26 uninterrupted

years while the respondent was not and the person to suffer prejudice most would

be the applicant.

Taking into totality all the circumstances in this case, I find that even

though the delay herein is inordinate, I find that the reasons given are plausible

and with regard to the possibility of the appeal succeeding, I find the issue of

jurisdiction raised to be weighty of course mindful of the fact that I cannot

comment further on this sitting as a single bench. Similarly, I am of the

considered opinion that the applicant would stand to suffer great prejudice as

opposed to the respondent.

In the end, I find that the applicant has demonstrated and satisfied the

existence of the principles for consideration in the exercise of my unfettered

discretion under Rule 4 of the Court as laid out in

Leo Sila Mutiso case

(supra

), to

extend time and therefore reluctantly allow the application.

Accordingly, I direct the applicant to file and serve a notice of appeal within

14 from the date of this ruling and to within 60 days from the date of lodging of

the notice of appeal to file and serve the record of appeal and in default these

orders shall stand vacated.

The costs of this motion shall abide the outcome of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE, 2021.

F. SICHALE

......................................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

Signed

DEPUTY REGISTRAR