Rigu v Mwangi

2. That it would be unfair to condemn the applicant who swiftly sought alternative representation to ensure that his appeal was heard; 3. That the intended appeal is arguable with chances of success; 4. That the respondent will not suer any prejudice should the orders be granted; 5. That the right to be heard is a constitutional right. 3. The application is supported by the supporting adavit of the defendant/applicant herein Joseph Kinyi Mwangi, wherein he reiterated the contents of the grounds in support of the application. 4. The plainti/respondent opposed the application through his replying adavit dated February 18, 2022, wherein he averred that the application was brought with inordinate delay, with no sucient reasons for the delay provided, and that the applicant has not demonstrated why no action has been taken by the applicant whatsoever. The respondent further stated that the application was led 3 years after the judgement, and that he has already taken possession of the suit property and has developed the same during that period. He further stated that the defendant/applicant seeks the orders to restrain him, while he has already taken possession. Lastly he stated that it would be a tedious aair for the applicant to take possession. The plainti/respondent had also led grounds of opposition dated February 16, 2022, wherein he stated; 1. That applicant has approached the court with dirty hands as the application was led on January 21, 2022, but served on February 15, 2022, with a hearing on February 17, 2022. 2. No sucient reason has been demonstrated by the defendant/ applicant to warrant the orders sought. 3. The defendant/applicant has been indolent and guilty of latches. 4. The applicant has taken 2 years and 11 months to make this application without any good reason. 5. The plainti/respondent is already in possession and enjoying the fruits of his judgement. 5. The application was canvassed by way of written submissions. The defendant/applicant led his written submissions on July 13, 2022, through the law rm of Samuel Nyambane & Co Advocates. He relied on various authorities: 6. On whether the applicant should be granted leave to le an appeal out of time, the applicant relied on section 79G of the Civil Procedure Act which provides for time for ling appeals from subordinate courts. It provides as follows; Every appeal from a subordinate court to the High Court shall be led within a period of 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 satises the court that he had good and sucient cause for not ling the appeal in time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13352/eng@2022-10-06 2

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7. On the claim that the applicant’s advocates failed to inform him on the judgement or outcome of the court, the defendant/applicant relied on the case of Bakari Gakere v Mwana Idd Guchu & 3 others (2022) eKLR, where the court held;“The court notes the mistake of counsel who was better placed to advice his clients and opines that such mistake should not be a bar to the applicant to sit on the seat of justice.” 8. Similarly, in the case of Shah H Bharmal & Brothers v Kumar (1961) EA 679, the court held that a mistake of counsel was sucient cause to appeal out of time. 9. Further, in the Supreme Court application No 16 of 2014 – Nicholas Korir Salat v IEBC & 7 others (2014) eKLR, the court enumerated the principles that guide it in exercising discretion on application led out of time. It held as follows: 10. 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. b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. c) Whether the court should exercise its discretion is a consideration to be made on a case-bycase basis. d) Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the court. e) Whether there will be any prejudice suered by the respondents if the extension is granted. f) Whether the application has been brought without unreasonable delay. On the issue of inordinate delay in ling the application, the applicant relied on the case of Mwangi Kimenyi v AG & another (2014) eKLR, where the court held: “ There is no precise measure of what amounts to inordinate delay. Inordinate delay will dier from case to case depending on the circumstances of each case; the subject matter of the case, the nature of the case, the explanation for the given delay and so on and so forth. 11. Further on the issue of whether a stay of execution should be granted, the applicant relied on the case of RWW v EKW (2019) eKLR, where the court held; “ …the purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute so that the rights of the applicant who is exercising his undoubted rights of appeal are safeguarded and if the appeal is successful, is not rendered nugatory, however, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suers prejudice that cannot be compensated by an award of costs.” “The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13352/eng@2022-10-06 3

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However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suers prejudice that cannot be compensated by an award of costs. 12. Lastly, the applicant relied on order 42 rule 6(2) of the Civil Procedure Rules which sets out the principles to be considered in an application for stay of execution. It states: (2) 13. No order for stay of execution shall be made under subrule (1) unless— (a) the court is satised that substantial loss may result to the applicant unless the order is made, and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. The plainti/respondent led his written submissions through the law rm of Kimwere Josphat & Co Advocates, on April 21, 2022, and relied on the following authorities: a. Mwangi v Kenya Airways Ltd (2003), wherein the court held in relation to stay of execution, it ought to consider inter alia the length of delay, the chances of appeal and the degree of prejudice to the respondent. b. Stanley Mwangi & 2 others v Kanyamwi Trading & Co Ltd (2015) eKLR wherein the court held that a plausible and satisfactory explanation for any delay is the key that unlocks the courts discretionary favour. c. In Sayers v Clarke Walker (2002) EWCA Civ 645 where the court held as follows: “ It follows that when considering whether to grant an extension of time for an appeal against a nal decision in a case of any complexity, the courts should consider all the circumstances of the case including:Interest of the administration of justice;Whether the application for extension has been made promptly;Whether the failure to comply was intentional;Whether there was a good explanation of the failure;The extent to which the party in default has complied with the rules, practice and directions and court orders;Whether the failure to comply was caused by his legal representative;The eect which the failure to comply had on each partyThe eect which granting the relied would have on each party. d. 14. Lastly, he relied on the case of Jasbir Singh Rai & 3 others v Tarlochan Singh & 4 others, where the court held that awarding of costs is not to penalize the losing party, but as a means for the successful litigant to be recouped for the expenses to which he has been put in ghting the action. The court has carefully considered the pleadings and rival written submissions of the parties herein, and nds the issues for determination are two-fold: a. Whether the applicant should be granted leave to le an appeal out of time? b. Whether a stay of execution should be granted? https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13352/eng@2022-10-06 4

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15. The application herein seeks two orders, namely that the time to le an appeal be extended and that a stay of execution pending appeal be granted against the judgment of this court made on February 21, 2019 in ELC No 200 of 2017. 16. The application was made on the grounds that the defendant/applicant is a layman who was not aware of the intricate nature of ling appeals, and that his previous advocates erred by failing to inform him of the trial court’s determination, which was entered against him. He further averred that he sought the services of new advocates and then led this application to le appeal out of time. 17. The plainti/respondent opposed the application on the grounds that the delay in lling the notice, memorandum, and record of appeal was inordinate, and the reason for the delay was not sucient and that the application ought to be dismissed. 18. Section 79G of the Civil Procedure Act states that every appeal from a subordinate court to the High Court shall be led within a period of 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. 19. The grant or refusal of an extension of time is a matter of judicial discretion, to be exercised in a principled manner in accordance with reasons and justice. (See the Supreme Court case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2013] eKLR). 20. The principles upon which this court determines an application for extension of time to le an appeal are well settled. The court considers the length of the delay; the reason for the delay; (possibly) the chances of success of the intended appeal; and the degree of prejudice that would be occasioned to the respondent if the application is granted. See Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231; Fakir Mohammed v Joseph Mugambi & 2 other [2005] eKLR; and Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, civil application No 190 of 2019. (As was held by D.K Musinga, JA in Court of Appeal at Nairobi civil appeal (application) E444 of 2021). 21. From the above, the factors that the court is supposed to take into consideration in the determination of an application of this nature are;Firstly, the length of the delay.Secondly, reason for the delay.Thirdly, “possibly” arguability of the intended appeal andfourthly, any prejudice to be suered by the opposite party should the relief sought by the Applicant be granted.(See Court of Appeal at Kisumu civil appeal (application) E270 of 2021 Kiu & another v Khaemba & 3 others). 22. Starting with delay, from the court record, it is evident that the impugned judgement was entered on February 21, 2019, while the present application was led on January 10, 2022. This is a period of 2 years and 10 months. 23. In the case of George Mwende Muthoni v Mama Day Nursery and Primary School, Nyeri CA No 4 of 2014 (UR), extension of time was declined on account of the applicant’s failure to explain a delay of twenty (20) months. While in the case of Aviation Cargo Support Limited v St Marks Freight Services Limited [2014] eKLR, the relief for extension of time was declined for the applicant’s failure to explain why the appeal was not led within sixty days stipulated for within the rules after obtaining a certied copy of the proceedings within time and, second, for taking six months to seek extension of time within which to comply. 24. In the present case the delay is well over 2 years, which is clearly inordinate in the circumstances herein, and which inordinate delay would cause dicult and injustice to the respondent herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13352/eng@2022-10-06 5

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25. The next issue for consideration is the reason for the delay which the defendant/applicant states was due to his previous advocate’s failure to inform the applicant of the court’s determination and its contents and also being unaware of the appeal’s process. 26. On this issue, the court will rely in the case of Ruga Distributors Ltd v Nairobi Bottlers Ltd (2015) eKLR, where the court held as follows: “Whereas it would constitute a valid excuse for a defendant to claim that she had been let down by her former advocates, failure to attend court on the date the application was xed, it is trite that a case belongs to a litigant and not to her advocates. A litigant has a duty to pursue the prosecution of his/her case…it is the duty of the litigant to constantly check with his/her advocate the progress of their case.” 27. This court agrees, with the holding of the court in the above case and re-state that it is not enough for the defendant/applicant herein to blame his advocates. He ought to have shown tangible steps taken by him to follow up his matter, as the case belonged to him and not his advocate. 28. Thirdly, is the possibility that the intended appeal is arguable. The defendant/applicant herein has annexed a memorandum of appeal indicating the three issues he intends to address on appeal. These issues, are that the trial judge erred in her interpretation of the doctrine of lis pendes, that the judge erred in her apprehension of facts and law when she failed to consider the element of trust and adverse possession raised by the applicant in the trial court and that the trial judge erred by basing her analysis on the determination in civil suit No 324 of 2008, which proceeded undefended. 29. In law, an arguable appeal/intended appeal is one that need not to succeed, but one that warrants the court’s interrogation on the one hand and the courts invitation to the opposite party to respond thereto. 30. Though the three grounds raised by the applicable are arguable, the fact that there was inordinate delay and that the plainti/respondent has taken possession renders the application impossible to grant. 31. The fourth and nal matter is whether any prejudice would be suered by the opposite party should the relief sought by the applicant be granted. The plainti/respondent having been the successful litigant is entitled to the fruits of his success and the relief sought in the present appeal would deny him the suit property and thus enjoyment of the fruits of his judgement. 32. On the totality of the above assessment and reasoning, the court is satised that the defendant/ applicant has failed to satisfy the prerequisites for granting of leave to le an appeal out of time, and also for stay of execution. 33. Consequently, the court proceed to make orders as follows: 1. Leave of extension of time within which to le and serve a notice of appeal is denied. 2. With leave to appeal so denied, so is the application for stay of execution pending appeal. 34. Having considered the instant notice of motion application dated January 10, 2022, and the above analysis, the court nds and holds that the said application is not merited. 35. For the above reasons, the said application is dismissed entirely with costs to the plainti/respondent. It is ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 6TH OF OCTOBER 2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13352/eng@2022-10-06 6

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L. GACHERU JUDGE Delivered virtually in the presence of; Joel Njonjo - Court Assistant Plainti/Respondent – Absent Mr Gathaga H/B Nyambane for the Defendant/Applicant L. GACHERU JUDGE 6/10/2022 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13352/eng@2022-10-06 7

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