Kariuki & 2 others (as trustees of Kihinganda Self Help Group) v Kakuzi Limited & 3 others; National Land Commission (Interested Party)

2. The application is premised on the grounds stated thereon and on the supporting adavit of Denis Gitaka, the legal manager of the 2nd defendant/applicant, who averred that the ruling in this matter was delivered on May 12, 2022, wherein the court dismissed the applicant’s application dated September 17, 2021, on the grounds of being sub judice and time barred. The said deponent averred that the said ruling was delivered without notice and after several changes to the date of the ruling and the court registry did not issue ruling notice prior to the delivery of the ruling. The applicant avers that it only learnt of the ruling delivered on May 12, 2022 on September 8, 2022, upon inquiry into a dierent matter in the court registry. ruling in the Court of Appeal and that the delay in issuing notice of the intended appeal was occasioned by the lack of service by the court registry of a ruling date. That upon gaining information of the ruling, the present application was led without undue delay. 3. Despite the delay, the applicant avers that they are still desirous of appealing against the said 4. Further, the applicant avers that the grounds of appeal contained in the draft memorandum of appeal raise serious issues of law with a high chance of success, therefore necessitating this application to seek extension of time to le an appeal out of time. 5. The plaintis/respondents opposed the application through the replying adavit of Isaac Njoroge Kariuki dated November 29, 2022, in response to the application dated October 21, 2022, which was later amended and led on December 20, 2022. In the said replying adavit, the deponent averred that he was a trustee of the 1st plainti/respondent with authority to swear the adavit. It was the respondents contention that the 2nd defendant/applicant’s request for the enlargement of time to le their intended appeal out of time has no basis in law and that the provisions are not clothed with the discretionary jurisdiction for such an application. 6. The respondents further averred that the applicant’s notice of motion ought to fail, as it has not provided sucient cause for not ling the appeal on time. The respondents raised numerous grounds on which the application ought to be dismissed, including that this court lacks discretionary jurisdiction to grant the orders sought; - that the application oends order 50 rule 6 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act. That the application was brought under the wrong provision of law; that the application is devoid of merit and that the claim that the applicant became aware of the ruling on September 8, 2022, was false. In summary, the plaintis/respondents averred that the application does not meet the threshold for grant of extension of time as required by law and prayed that the said application be dismissed, with costs. 7. The application was canvassed by way of written submissions. 8. The 2nd defendant/applicant through the law rm of Kaplan & Stratton Advocates, led their written submissions in support of the application on February 6, 2023. The 2nd defendant/applicant submitted on its three main issues. 9. On the issue of whether the court has jurisdiction to extend the time for ling an appeal, the 2nd defendant/applicant submitted that section 7 of the Appellant Jurisdiction Act grants this court the power to extend time for ling an appeal. It states: 10. The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certicate that the case is t for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired: 11. Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 2

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12. The applicant placed further reliance on order 50 rule 6 of the Civil Procedure Rules which states: Where a limited time has been xed for doing any act or taking any proceedings under these rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application unless the court orders otherwise.” 13. In light of the legislative provisions for the enlargement of time, the 2nd defendant/applicant relied on several cases touching on the same. The applicant relied on the case of Kenya Port Authority & another v Timothy Nduvi Mutungi (2014) eKLR, wherein the court held that an application to extend time for notice of intention to appeal pursuant to rule 7 of the Appellate Jurisdiction Act, from the High Court was competent. They further relied on the case of R v County Land Adjudication & Settlement Officer- Laikipia & another, ex-parte Kabaiga Kirangu Kimiri (2019) eKLR, where the court held:"It will be observed that the Court of Appeal did not hold that the application for extension of time to lodge a notice of appeal out of time had been properly led in the High Court and the High Court ought to have determined it. I do not therefore agree with the argument that this court has no jurisdiction to entertain the present application in so far as it seeks extension of time to lodge a notice of appeal out of time.” 14. The second issue was whether the 2nd defendant/applicant has satised the threshold for grant of leave to le an appeal out of time? 15. On this issue the applicant submitted that power to grant leave is discretionary and should therefore be exercised with the well settled principles. The applicant relied on the case of Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Co Ltd (2015) eKLR, wherein it was held that: "The powers of the court in deciding such an application are discretionary and unfettered. It Is therefore upon an applicant under this rule to explain to the satisfaction of the court that he is entitled to the discretion being exercised in his favour.” 16. The applicant further submitted that the delay in ling the intended appeal was not deliberate, and was occasioned by acts beyond its control. That despite due diligence, the applicant only became aware of the ruling on September 8, 2022. Reliance was placed on the case of Muri Mwaniki & Wamiti Advocates v Edward Mukundi Karanja & 2 others (2019) eKLR where the court held; “That absence and information of the delivery of the ruling vitiated the applicant’s right to lodge an appeal on time. I hereby extend the period for lodging the appeal within 30 days from delivery of the instant ruling.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 3

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17. Further, the applicant submitted that it has an arguable appeal that raises arguable point of law. It relied on the case of Kenya Airports Authority v Mitubell Welfare Society Another (2014) eKLR where the Court of Appeal held as follows: An arguable appeal is no more than one that raises a legitimate point or points deserving judicial determination. An appeal need not raise a multiplicity or any number of such points; a single arguable point is sucient to earn appeal such application” 18. On the nal issue of whether the plaintis/respondents will suer any prejudice if the application is granted, the 2nd defendant/applicant submitted that the plaintis/respondents have not adduced any evidence that the application herein is an afterthought or intended to prejudice the delay of the hearing of the matter. Reliance was placed on the case of R v County Land Adjudication & Settlement OfficerLaikipia & another, Ex-Parte Kabaiga Kirangu Kimiri (2019) eKLR wherein the court held as follows: "other than arguing that this court lacks jurisdiction to grant the orders sought, the respondents have not demonstrated what prejudice, if any, they would suer if the application is allowed.” 19. In conclusion, the 2nd defendant/applicant urged the court to exercise it jurisdiction and grant the prayers sought. 20. The plaintis/respondents through the Law of Owang’ & Associates Advocates led their written submissions on February 1, 2023, and opposed the application. They submitted that the application has no basis in law and that the 2nd defendant/applicant has not provided any good and sucient reasons for not ling the appeal on time. They relied on the case of Nyateko v Fredrick Omondi Oketch (2021) eKLR, wherein the court held: The provisions of the law that clothes this court with the discretion to grant leave to le an appeal out of time lies with section 79G and 95 of the Civil Procedure Act and section 16A of the Environment and Land Court Act. It is trite that in order for a party to succeed in such a motion, an applicant must satisfy the court that it has a good and sucient cause for not ling the appeal on time.” 21. The plaintis/respondents further submitted that the applicant failed to meet the criteria for the grant of leave to le an appeal out of time. They relied on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (2014) eKLR wherein the principles were set out as follows: 22. We derive the following as the under-lying principles that a court should consider in exercise of such discretion: 1. 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; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 4

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23. 5. Whether there will be any prejudice suered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time?” The plaintis/respondents further submitted that there is no appeal on record for this court to exercise its discretionary jurisdiction;- that the application was brought under the wrong provisions of the law and that the applicants had not suciently explained the delay. They relied on the case of Rufus Muriithi Nyaga v Juliet Wanja Ireri (2018) eKLR, wherein Justice Muchemi held as follows: “When a court is considering delay, the length of delay is a relevant factor. The applicant was required to act within 21 days, but he took a whole one (1) year in slumber. It is not too harsh to refer the applicant as an indolent litigant. The limited time of ling the record was not xed in vain, but to serve the purpose of expeditious disposal of case. Litigation must come to an end. The discretion of the court to extend time must be exercised judiciously. I nd one (1) year delay inexcusable and contrary to the overriding objective in regard to expeditious disposal of cases and in regard to economic use of judicial resource.” 24. Lastly, the plaintis/respondents submitted that the claim that the 2nd defendant/applicant became aware of the ruling on September 8, 2022, is false and that therefore fails to satisfy this court’s criteria to hear and determine the application. Further, that the application is a mere afterthought, calculated to prejudice the plaintis/respondents and delay the conclusion of the matter. The plaintis/ respondents prayed that the instant application should be dismissed with costs. 25. This court has considered the instant application, the rival written submissions and the authorities cited by the parties and nds the two issues for determination are: 26. 1. Whether the time for lodging an appeal ought to be extended? 2. Whether the appeal is arguable? Section 66 of the Civil Procedure Act provides as follows: "Except where otherwise expressly provided in this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal.” 27. The period provided for lodging of appeal to the Court of Appeal is normally 14 days as provided for by order 43(3) of the Civil Procedure Rules and rule 75(2) of the Court of Appeal Rules. Where time has lapsed, a party can move court for the extension of time. 28. This power is donated to this court by section 7 of the Appellate Jurisdiction Act. Similarly, by order 50 rule 5 of the Civil Procedure Rules which is replicated under section 95 of the Civil Procedure Act which states: "Where any period is xed 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 xed or granted may have expired.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 5

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29. In the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi – civil application No Nai 251 of 1997, the court stated as follows; "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, rst 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.” 30. 31. As submitted by both parties, the principles that guide the court in exercising its discretion to grant leave to le an appeal out of time were well settled in Supreme Court application No 16 of 2014 Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR (Supra). The principles include: 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 the discretion to extend time, is a consideration to be made on a case to case 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 undue delay; and g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time. Further, the principles to be considered in exercising the discretion whether or not to enlarge time were also elucidated in case of First American Bank of Kenya Ltd v Gulab P Shah & 2 other Nairobi (Milimani) HCCC No 2255 of 2000 [2002] 1 EA 65, where the court set out the factors to be considered in deciding whether or not to grant such an application and these are: i. The explanation if any for the delay; ii. The merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; and iii. Whether or not the respondent can adequately be compensated in costs for any prejudice that he may suer as a result of a favourable exercise of discretion in favour of the applicant?” 32. Having considered the above principles for the grant of leave to le an appeal out of time, this court will examine and analyse the said principles as set out and juxtapose them with the present case, to make a conclusion on whether the applicant is deserving of the orders sought. 33. The rst issue for consideration is the explanation for the delay. The 2nd defendant/applicant has alleged in its application that it only found out about the impugned ruling on September 8, 2022, despite the ruling having been delivered on May 12, 2022. This is a period of 3 months and 27 days. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 6

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34. It is trite that a delay is delay, even after one day and a party seeking the indulgence of court must endeavour to give reasons for the said delay. The applicant herein submitted that the ruling was delivered without notice to the parties after the ruling dates changed on several occasion. That the applicant happened to nd out that the ruling was delivered while checking something else in the registry or while following up on another matter. 35. The plaintis/respondents opposed the application. It was the plaintis/respondents contention that they were notied of the ruling date by the court registry and it denounce the 2nd defendant/applicant’s claim that the parties were not notied of the said ruling date. 36. The applicant is required to give sucient reasons for the delay in ling the application so that the orders sought can be can granted. The applicant herein has blamed the delay on the change of the ruling date due to the court not sitting on the stated days. As a consequence, the 2nd defendant/applicant averred that it was not aware when the ruling was nally delivered. The applicant attached ruling notice dated April 5, 2022. The court notes that the ruling date did indeed change, though a notice was issued. 37. The other issue for consideration is whether the intended appeal is an arguable one deserving a day in court, or whether it is a frivolous one which would only result in the delay of the course of justice? 38. The applicant has annexed a draft memorandum of appeal, in which it has raised eight grounds of appeal. As was held in the Mitubell Case (supra) an arguable appeal is no more than one that raises a legitimate point or points deserving judicial determination. An appeal need not raise a multiplicity or any number of such points; a single arguable point is sucient to earn appeal such application. 39. This court having reviewed the draft memorandum of appeal, and it nds and holds that the 2nd defendant/applicant has raised arguable points of law. It would not be just for the court to dismiss the 2nd defendant/applicant out of court or seat of justice and deny them the right to appeal. The applicant should be given its day in court by allowing extension of time to le its appeal. 40. The nal issue for consideration is whether or not the plaintis/respondents can adequately be compensated by costs for any prejudice that they may suer, as a result of a favourable exercise of discretion in favour of the 2nd defendant/applicant. 41. The court having found that the ruling date did indeed change and that the 2nd defendant/applicant has an arguable appeal, it cannot be said that the plaintis/respondents will be prejudiced by the wheels of justice turning to ensure that all parties are given their day in court. 42. Having considered the application and the pleadings by the parties herein, this court nd the instant amended notice of motion application dated December 19, 2022, is merited and the said application is allowed in the following terms; 1. Leave be and is hereby granted to the 2nd defendant/applicant to le appeal out of time against the ruling delivered on May 12, 2022, within the next 14 days from the date hereof. 2. The applicant is granted extension of time to le its intended appeal within fourteen (14) days from the date hereof. 3. In default, the instant leave or orders granted herein will lapse automatically. 4. The plaintis/respondents are entitled to costs of the application. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 7

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DATED,SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 28TH DAY OF MARCH, 2023. L. GACHERU JUDGE Delivered virtually in the presence of; Joel Njonjo/Mwende - Court Assistants Mr Owang for the 1st Plainti/Respondent 1st Defendant/Respondent – Absent Ms Kithinzi for the 2nd Defendant/Applicant 3rd Defendant/Respondent – Absent 4th Defendant/Respondent – Absent Interested Party – Absent L. GACHERU JUDGE 28/3/2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16717/eng@2023-03-28 8

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