Boro v Registered Trustee of Lady Muriel Jex Blake Memorial Garden & another (Civil Application E289 of 2024) [2024] KECA 1932 (KLR) (20 December 2024) (Ruling)
Neutral citation:
[2024] KECA 1932 (KLR)
Republic of Kenya
Civil Application E289 of 2024
SG Kairu, JA
December 20, 2024
Between
Anthony Njehu Boro
Applicant
and
The Registered Trustee of Lady Muriel Jex Blake Memorial Garden
1st Respondent
The Commissioner of Lands
2nd Respondent
(Being an application for extension of time to file an appeal out of time from the Judgment of the Environment and Land Court of Kenya at Nairobi (Komingoi, J.) dated 18{{^th}} June, 2020.in ELC Cause No. 46 of 2009
Environment & Land Case 46 of 2009
)
Ruling
1.In his application dated 4th June 2024, invoking the Constitution of Kenya and the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, the applicant, Anthony Njehu Boro, seeks extension of time to file his appeal out of time. He intends to challenge a judgment of the Environment and Land Court at Nairobi (Komingoi, J.) (ELC) delivered on 18th June 2020 in ELC suit No. 46 of 2009 consolidated with ELC suit No. 296 of 2009. Those suits related to a dispute over ownership of a property known as L.R. No. 209/4322 which the ELC found is owned by the respondent having concluded that the ownership documents on which the applicant relied to claim ownership were not authentic and that he is a trespasser on the property.
2.The applicant filed a Notice of Appeal dated 1st July 2020 lodged on 2nd July 2020 through C. K. Nyabuto Advocate. Under Rule 82 (now Rule 84) of the Court of Appeal Rules, he should have instituted his appeal within sixty days of lodging the notice of appeal, which he evidently did not do and hence the present application.
3.I have considered the application, the applicant’s supporting affidavit, the replying affidavit of Susan Joanna Church, the Chairperson of the 1st respondent, and the rival submissions. Undoubtedly, the Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time. However, that discretion must be exercised judicially. The principles that guide the Court in that regard were stated by Waki, JA in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR as follows:
4.In the same vein, the Supreme Court of Kenya more recently in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, Supreme Court Application No. 16 of 2014[2014] eKLR 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; that delay should be explained to the satisfaction of the court; whether there will be prejudice suffered by the respondents if the extension is granted; and whether the application is brought without undue delay. Public interest should also be a consideration.
5.With those principles in mind, the applicant states that he was unable to pursue the matter and to follow up with his advocates on the issue of appeal on account of his medical condition and being bedridden for “quite a lengthy time”. In that regard he exhibited to his affidavit a medical report dated 4th April 2024 by a Dr. Gitonga in which reference is made to his initial consultation at Mathari National Teaching & Referral Hospital on 4th August 2020, where following assessment, he was admitted for treatment and stabilization and then discharged to continue treatment as an outpatient.
6.It is not clear from either his affidavit or the medical report for how long the applicant was admitted in hospital. However, the medical enumerates his “numerous out-patient and follow up clinic visits” between 4th August 2020 and 23rd April 2024 (at least eleven visits are captured over that period) and indicates that the applicant was scheduled for a further consultation visit on 29th October 2024. The medical report concludes:
7.From the date of delivery of the ELC judgment 18th June 2020 to the time the present application was filed in June 2024 is a period of approximately four years as correctly stated in the replying affidavit of Susan Joanna Church who also deposes that the matter has been in court for over 15 years. That is undoubtedly a long time. Even as I empathise with the respondent, in the unique circumstances of this case as captured in the medical report exhibited by the applicant, he has in my view laid a basis for the exercise of the Court’s discretion in his favour as the explanation for the inaction over the four years on account of his mental state is in my view plausible.
8.Consequently, I grant prayers 2 and 3 of the application dated 4th June 2024. The applicant has thirty (30) days from the date of delivery of this ruling to file and serve his memorandum and record of appeal failing which the Notice of Appeal dated 1stJuly 2020 and lodged on 2nd July 2020 shall be deemed to have been withdrawn without further ado.
9.Costs of the application shall abide the outcome of the appeal.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024.S. GATEMBU KAIRU, FCIArb.....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed**DEPUTY REGISTRAR.