Nganga v David & 2 others (Environment and Land Case Civil Suit 586 of 2001) [2022] KEELC 13416 (KLR) (3 October 2022) (Ruling)
Neutral citation:
[2022] KEELC 13416 (KLR)
Republic of Kenya
Environment and Land Case Civil Suit 586 of 2001
LL Naikuni, J
October 3, 2022
Between
Wanjiku Nganga
Applicant
and
Elizabeth Shighadi David
1st Defendant
Mwanaisha Abdi
2nd Defendant
Municipal Council of Mombasa ( County Government Of Mombasa)
3rd Defendant
Ruling
I. Introduction
1.Before the honorable court for its determination is the notice of motion application dated October 23, 2020 by the 1st defendant/applicant. It has been brought under the dint of sections 1A, 1B, 3, 3A & 63 (e) of the Civil Procedure Act Cap 21, section 7 of the Appellate Jurisdiction Act Cap 9 and order 42 rule 6 of the Civil Procedure Rules, 2010.
II. The 1st defendant’s/applicant’s Case
2.The 1st defendant/applicant seeks for the following orders. These are:-a.Spent;b.That leave be granted to Kilonya Kiira of Thabit, Wampy & Kitonga Advocates to come on record for the 1st defendant in place of Jane Kagu & Company Advocates as per the consent filed herewith;c.That there be a stay of execution of the judgment delivered on March 9, 2022 and the resultant decree pending the inter-parties hearing and determination of this application;d.That there be a stay of execution of the judgment delivered on March 9, 2020 and the resultant decree pending the inter- parties hearing and determination of the intended appeal to the Court of Appeal or for such other period as the honorable court may deem just;e.That the 1st defendant be granted an extension of time to file a notice of appeal and notice of appeal dated October 21, 2020 be deemed as duly filed within the extended time; andf.That the costs of this application be provided for.
3.The notice of motion application is premised on the grounds, facts and averment made out under the two (2) thirteen (13) paragraphed supporting affidavit of Billy Kongere and another eight (8) paragraphed supporting affidavit of Elizabeth Shigadi David both sworn and dated on October 23, 2020.
(a) Supporting affidavit sworn by Billy Kongere
4.He deposed that he was an Advocate of the High Court of Kenya having had the conduct of this matter on behalf of the 1st defendant thus conversant with the facts of this case and competent to swear this affidavit. He averred that he was introduced to the 1st defendant herein by her daughter Maureen Mwadime Mghombi hereby he agreed to take over the matter on her behalf from the Law firm of Messrs Munyao, Muthama and Kashindi Advocates. From then onwards the 1st defendant had been communicating with him either directly or through her daughter to update her on the progress of the case.
5.He informed court that when the matter was in court to confirm filing of submissions, he instructed Mr Antony Luganye advocate to hold his brief and which he did. He informed him that judgement would be delivered on March 19, 2020 which information she passed on to the 1st defendant’s daughter. However, when there was the global outbreak of Covid -19 Pandemic the 1st defendant informed him that she went to Taita Taveta County which was her ancestral home.
6.He averred that in the early month of July 2020 both the defendant and her daughter asked him about the progress of the case and whereby he informed them that courts were not fully operational and he shared the notice to that effect; therefore he was under the impression that the judgement would be delivered once normalcy returned. He stated that on September 2, 2020 he received a letter dated July 15, 2020 from the plaintiff’s advocate seeking his approval of the draft decree; which on September 3, 2020 he shared that information with the 1st defendant’s daughter on the information technology - cell phone Whatsapp platform. Indeed that was the first time he became aware that judgment had been in fact delivered on March 9, 2020 but experienced challenges in accessing a copy from the court as he was still working from home. But later on he managed to obtain a copy from the Kenya Law Report and noted its contents which he then explained to the 1st defendant’s daughter.
7.Upon receiving the information the 1st defendant was unhappy with both the judgment and his failure to inform her of it on time. Therefore, she chose to withdraw instructions from him and which he had no abjection to that decision. He admitted that the delay in filing a notice of appeal was significantly contributed to by his mistake in noting the date as March 19, 2020 instead of March 9, 2020 to have informed the 1st defendant on time. Thus, he requested court to pardon him for his mistake and not to punish the 1st defendant. He noted the very emotive nature of the dispute and the fundamental pointed intended to be raised on appeal. He urged court to allow the orders sought from the application.
(b) The supporting affidavit sworn by the 1st defendant - Elizabeth Shighadi David.
8.On October 29, 2020, the 1st defendant filed the supporting affidavit and three (3) annextures marked as 'ES - 1 to 3' annexed hereto. She confirmed having been introduced to Mr Billy Kongere advocate by her daughter Maureen Mwadime Mughambi who took over the matter from the law firm of Messrs Munya Muthama & Kashindi Advocates. She had been communicating with Mr Kongere advocate either directly or through her daughter.
9.After the lockdown following the Covid-19 pandemic she got in touch with her advocate to know the progress of the case and who informed her that the courts had not been fully operational. She later learned judgment had been delivered on March 9, 2020 and being aggrieved wanted to appeal against the whole of the judgment; as the appeal was arguable, the failure to file the notice of appeal on time was because her former advocate had not properly noted the date for the delivery of the judgment.
10.She blamed her former advocate for the failure to inform her of the date for the delivery of the judgment which she had been following up keenly. She averred that given the age of the case and the prevailing condition at the court registry brought about by the global Covid-19 pandemic, it took the current advocate time to obtain all the copies of the pleadings from court and acquaint himself with the case. Hence the delay was neither deliberate nor unreasonable. She urged court to grant the orders sought as she was apprehensive she would suffer irreparable loss taking that she had constructed structures on the suit land which was adjacent to the matrimonial home and therefore the order of eviction would significantly interfere with her quiet enjoyment of her matrimonial home. Further her right of appeal would be rendered nugatory as there would be nothing stopping the plaintiff from selling or leasing the suit property to third parties and hence her constitutional right to access justice under article 48 would be violated and also it would be inhuman to evict her on property she had occupied for more than twenty (20) years.
11.In the conclusion she undertook to being willing to provide such security for the due performance of the decree as the court would order, in any case she posited that the suit property was immovable and could not be disposed off given the injunctive orders in force. It therefore provided sufficient security. She prayed to be granted the prayers sought.
III. The replying affidavit by the plaintiff/respondent
12.On December 18, 2020 the plaintiff/respondent filed thirteen (13) paragraphed replying affidavit sworn by Randolph M Tindika and dated December 16, 2020 and the annexture marked as 'RMT - 1' annexed hereto.He deponed that he was aware that Billy Kongere was a partner in the law firm of Messrs Muriu Mungai & Company Advocates and though he was appeared severally in the matter as holding brief for the law firm of Messrs Jane Kagu & Co Advocates in which he was given not a partner, it was curious thus to note that in his affidavit herein he stated that he had instructions to act for the 1st defendant and not the firm of advocates which was legally on record.
13.He deposed that the said Mr Billy Kongere advocate had purported to sign the consent to change advocate as Jane Kagu & Advocates even though he was not a partner in the said firm. This clearly went to show how the 1st defendant and the said Billy Kongere had all along been misleading this honorable court and the parties herein with regard to representation.
14.He urged that Billy Kongere thus was clearly a demonstration of legal impunity and gross professional misconduct which no court ought to entertain but would stamp out by disallowing the notice of motion dated the October 23, 2020 owing to the obvious illegal conduct of the 1st defendant and her purported advocate.He averred on the November 19, 2019 after confirming that all the parties had filed their respective written submissions, the court proceeded to schedule the March 9, 2020 as the date of the delivery of the judgment and proceeded to deliver the same on that date as evidenced by a copy of the said judgment. He stated that it was clear from the said judgment that the advocate holding brief for Jane Kagu advocate for the 1st defendant was Adika advocate and not Mr Antony Luganye advocate as alleged which was a further attempt to mislead the honorable court.
15.He asserted that since the 1st defendant had been granted sixty (60) days to grant vacant possession, the plaintiff/respondent opted to allow her to comply with the said orders but when the same was not forthcoming the plaintiff/respondent preferred the draft decree and forwarded the same to the defendant’s advocate on record vide their letter dated July 15, 2020 which was never responded to by any of the said defendant’s advocate. He held that since the advocate who illegally purported to act for the 1st defendant Billy Kongere had admitted that he was neglected in dealing with the matter herein which he had christened mistake, then the only recourse was for the 1st defendant to sue her said advocate for professional negligence and not to frustrate the due process of the law through an application as the current on herein.
16.He posited that the delay of more than 71/2 months from the date when the judgment was delivered to the dated of the filing of the notice of appeal which was grossly inordinate had not been explained and the blame on the alleged mistake and Covid-19 pandemic were just a window dressing.
17.He deposed that assuming the 1st defendant learned about the delivery of the judgment herein on the September 3, 2020 which was vehemently denied and there it took another fifty (50) days for the application and the notice of appeal to be prepared and fix six (6) days for the same to be filed in court. He averred that in the premises, the 1st defendant had not only been indolent but also guilty of unexplained laches and thus not entitled to the orders sought in the application. He averred that in totality, there was no basis for granting the prayers sought in application dated October 23, 2020 as sought or and urged the application to be dismissed with costs.
IV. Submissions
18.On February 10, 2022 while all the parties were present in court, they were directed to have the notice of motion application dated October 23, 2020 be canvassed by way of written submissions. Consequently, all the parties complied and the honorable court granted a date for delivery of the ruling thereof.It will be noted that on February 10, 2022 following this court order, Mr Kongere advocate was summoned in person and he appeared in court testifying under oath and was cross-examined by Mr Tindika advocate for the plaintiff on the averments made from his supporting affidavit dated October 23, 2020 and filed in court.
A. The 1st defendant’s/applicant’s written submission
19.On April 22, 2022, the learned counsels for the applicants the Law firm of Messrs Kitonga Kiira Advocates filed their written submissions dated the even date. M/s Kitonga advocate reiterated that the applicant mainly sought for a stay of execution of the judgment delivered on March 9, 2020 as well as the resultant decree, pending Inter-parties hearing and determination of the intended appeal to the Court of Appeal. The applicant also sought an extension of time to file notice of appeal and the notice of appeal dated October 23, 2020 be deemed to be duly filed within the extended time.
20.The learned counsel argued that the applicant was unable to file the notice of appeal on time as she received the information of judgment after the lapse of time. The delay was occasioned by the outbreak of global Covid-19 pandemic and the restriction imposed by the government in order to curb it. These included travels restrictions, curfews and lockdown between the periods of March, 2020 to October, 2021.There was also the closure of court rooms to the public from March 16, 2020 in order to control human traffic flow in courts. Hence all appeals, hearings and mentions civil cases in all the courts were suspended. In the instant case, the learned counsel contention was that the applicant being an elderly person aged 67 years with underlying health condition with high blood pressure and diabetes was unable to proceed with the matter within the expected statutory timelines.Additionally, her advocate was also crippled at a time when all the courts and their law firm were closed. She could not embrace the technology introduced by judiciary as by then her advocate had already ceased acting for her; but it was after a year that she managed to file this application on October 23, 2020.
21.The learned counsel held that the mistake to have appeared in court during the delivery of the judgment on March 9, 2020 should not be visited on her. To buttress on this point she relied on the decisions of 'Philip Keipto Chemwolo & another v Augustine Kubende [1986] eKLR and 'Belinda Muras & 6 Others v Amos Wainaina [1978] eKLR' where court held:-
22.The learned counsel submitted that being dissatisfied by the judgment by this court, she got aggrieved and intended to prefer an appeal. According to her, the intended appeal was arguable. The counsel argued that the grounds were notably worth the Court of Appeal considering the weight of damages that would face the applicant should the substantive case be given wide berth.The learned counsel argued that the six (6) months was not unreasonable delay, the period from March 9, 2020 and October 23, 2020 was less than six (6) months being in the middle of a global Covid-19 pandemic. The prevailing circumstances made it impossible for taking any legal appropriate step.
23.The learned counsel submitted that there were specific provisions of the law which give court discretionary powers and which enable the enlargement and/or extension of time to file an appeal out of time. These are section 7 of the Appellate Jurisdiction Act, and section 799 of the Civil Procedure Act, Cap 21 on this legal preposition she relied on the decision of 'Wanjiru Mwangi & Anor 2013 eKLR and APA Insurance Co v Michael Karanja Muturi (2016) eKLR'. Which founded two (2) principles:-a.Whether the prayer was merited; andb.Whether the court had jurisdiction to extend the appeal.
B. The plaintiff’s/respondent’s written submission
24.On May 31, 2022, the counsel for the plaintiff/respondent the law firm of Messrs Tindika & Company Advocates while opposing the application filed their written submissions dated May 28, 2022. Mr Tindika submitted the reason provided for the delay in filing the appeal by the applicant to the effect that she had travelled upcountry to the county of Taita Taveta at the onset of the breakdown of the global Covid-19 pandemic and hence she became unaware of the judgment delivered by this court on March 9, 2020 until September 3, 2020 was not sufficient reason at all.The reasons for stating so were that firstly, the advocate on record for the applicant was Jane Kagu advocate and not Billy Kongere. Secondly on the March 9, 2020 when the judgment was delivered, Mr Adika advocate was present holding brief for Jane Kagu, clearly holding that the applicant was informed and thus became aware of the judgment; therefore the reasons given were all meant to deceive the honorable court.Further, the learned counsel averred that assuming the 1st defendant would be pardoned for being aware of the judgment on September 3, 2020, there was no explanation given for the further delay to October 23, 2020 fifty (50) days later on when she finally took action and fifty six (56) days later on to file the said documents in the Court of Appeal. To buttress on this point of the delay and not giving adequate explanation he relied on the decision of 'Nahesh Aggarwal v Silas Kiptui Kipchilla & 2 others, civil application No 136 of 2019, Eldoret 2020 eKLR & Nicholas Kiptoo Arap v The Independent Electoral and Boundaries Commission & 7 others (2014) eKLR, thus:-And cases of 'Bi Mach Engineering Limited v James Kahoro Mwangi (2011) eKLR & Habo Agencies Limited v Wilfred Odhiambo Musingo (2015 eKLR Court observed this:-
25.Thus the learned counsel held that no sufficient reason had been given for the delay and that she was only hiding behind or seeking refuge on the global covid -19 pandemic and her advocate. He vehemently argued the advocate Mr Kongere had not been candid enough to the court as when the judgment was read out Mr Adika was holding his brief. He relied on the decision of 'James Waweru Muturi v Paul Thuo Njambi Civil Application No 159 of 2017. Besides, the plaintiff/respondent was bound to suffer great loss and prejudice having been battling this suit for over 21 years. He averred that extension of time being an equitable remedy can only be available to a party who had acted honestly, equitably and with candour. According to the counsel the applicant and her advocate had not been honest.
26.Finally, the learned counsel contended that the honorable court should not rubberstamp professional negligence and impunity. He held that the court had no jurisdiction to resist abuse of the process of the court. In saying so he held that on cross examination to the contents of the advocate’s affidavit, he admitted that he signed the consent dated October 23, 2020 as the advocate acting for the applicant yet he was never a partner to Jane Kagu advocate who was on record for the applicant nor did he sign the said document for her. He also admitted that he was a partner of the law firm of Messrs Muriu Mungai & Co Advocates a firm he joined in the year 2014 and became a partner in the year 2017. He held that at the time of purporting to sign the said consent dated October 23, 2020 and act for the applicant he was still a partner at the law firm of Messrs Muriu Mungai & Co Advocates. However, Mr Kongere advocate stated that he never saw anything wrong with him acting for the applicant while the firm on record was not the one where he was a partner. He perceived this as being gross professional negligence and gross impunity and misconduct.To advance his argument on this point he relied on the decision of Kutima Investments Limited v Muthoni Kihara & another, Civil Application No 120 of 2005 Nbi (2006) eKLR.He urged court to disallow the application with costs.
V. Analysis and determination
27.I have keenly accessed the pleadings to the filed notice of motion application dated October 23, 2020 filed by the 1st defendant/applicant herein, the affidavits, replies, filed written submissions, the myriad authorities filed by the parties, the relevant provisions from the Constitution of Kenya, 2010 and the Statutes herein.In order for this honorable court to arrive at a fair, reasonable, just and informed decision, it has framed the following salient issues for its determination. These are:-a.Whether the notice of motion application dated October 23, 2020 by the 1st defendant/applicant established the threshold for being granted orders of (a) stay of execution of the judgment delivered by this court on March 9, 2020 (b) enlargement and/or extension of time to file notice of appeal out of time; and (c) the notice of appeal filed be deemed to be duly filed.b.Whether the parties herein are entitled to the reliefs sought.c.Who will bear the costs of this Suit.Issue No 1. Whether the notice of motion application dated October 23, 2020 by the 1st defendant/applicant established the threshold for being granted orders of (a) stay of execution of the judgment delivered by this court on March 9, 2020 (b) enlargement and/or extension of time to file notice of appeal out of time; and (c) the notice of appeal filed be deemed to be duly filed.
Brief facts
28.Before embarking to the issues under this sub-heading, the court feels it imperative to extrapolate on the facts of this case though briefly. From the filed pleadings, on November 26, 2001 the plaintiff/respondent instituted this suit through a plaint dated November 23, 2001. Later on the plaintiff filed an amended plaint on December 13, 2001. She claimed to be the absolute and legal proprietor to the suit property. However, on 5th November, 2001 the 1st defendant together with her servants moved into the plaintiffs aforesaid property, pulled down a kiosk standing thereon and commenced construction thereon. On November 13, 2001 the acting director of housing development department, Municipal Council of Mombasa ordered the 1st defendant to stop the construction but in vain. But on July 24, 2001 the plaintiff found out that the 3rd defendant re – allocated the suit property to the 2nd defendant and who on November 4, 2001 sold it to the 1st defendant herein. The plaintiff claim that these transactions by the defendants were done illegally, wrongfully and irregularly. As a result she was inconvenienced having been deprived of the use, possession enjoyment and/or control of the suit property. She had suffered loss and damage with special damages being the demolition of the kiosk by the 1st defendant which was valued at Kenya Shillings twenty one thousand (Kshs 21, 000.00) and a sum of Kenya Shilling five thousand (Kshs 5, 000, 000.00) per month from November 5, 2001 till delivery was given as mesne profits. She averred that the acts by the 1st defendant amounted to trespass and illegal interference with the suit property. The trespass was continuing. She also sought for the re – possession and the re – allocation of the plaintiff’s property by the 3rd defendant to the 2nd defendant and the sale and/or transfer of the said property by the 2nd defendant to the 1st defendant was illegal and unlawful having been fraudulently acquired. She sought for mandatory injunction.
29.Upon being served, the 1st, 2nd and 3rd defendants filed their defences and other related documents. The 1st defendant claimed to have legally acquired the suit property. She had taken vacant possession of it. She commenced construction of a building on it. She averred that she was an innocent purchaser of the said suit property for value without notice of fraud, if any, and that she had lawfully acquired it. She argued that the plaintiff’s suit was bad in law and incompetent in that she lacked 'locus standi' to file it based on the provision of the Law of Succession Cap 160. The 1st defendant herein opined that there was no privity of contract between the plaintiff and her. She sought for the suit instituted by the plaintiff to be dismissed with costs. The 2nd and 3rd defendants filed a joint defence whereby the denied all the averments made by the plaintiff. They stated that although that the plaintiff had been allocated the suit land but on being unable to pay any rents or premiums and after due notice to her, the plot was repossessed by the 3rd defendant who reallocated it to the 2nd defendant. They were of the view that after the re – allocation the plaintiff lacked ‘Locus Standi' to question the 3rd defendant’s right to allot the plot to the 2nd defendant or the 2nd defendant’s right to sell it to the 1st defendant. At the same time, the 3rd defendant raised a counter claim against the plaintiff for a sum of Kenya Shillings thirty thousand six hundred and fourty nine and fifty cents (Kshs 30, 649.50) being the balance of the charges payable to the plaintiff and sought to have the suit filed by the plaintiff dismissed with costs and judgement entered as per the counter claim.
30.Subsequently, the matter was set down for full trial where both oral and documentary evidence was adduced accordingly.
31.On March 9, 2020, this court delivered its judgment in favour of the plaintiff/respondent. It’s important that I point out that, the gist of this application cascades from the fact that when the judgment was delivered Mr Kongere advocate who was then on record, he claims not being aware having mis-diarized on March 19, 2020 but only came to learn of it later on upon receiving a letter from the then plaintiff’s/respondent’s advocate to approve the extracted decree. Upon learning of this judgment he informed the 1st defendant and her daughter who had been away at the County of Taita Taveta arising from the outbreak of the global Covid-19 pandemic and the restriction imposed being movement, curfew and closure of Institutions which included the courts.The state of affairs challenged the then advocate to access the judgment and other documents hence the delay in instituting an appeal.
32.Further upon being informed of the judgment the applicant got annoyed and decided to instruct another advocate to appear for her onwards. The plaintiff/respondent has held that despite all this the 1st defendant has been hiding behind the Covid-19 pandemic as the failure to file the appeal on time was solely caused by the professional negligence, impunity and misconduct of the advocate for the 1st defendant for ostensibly acting for the 1st defendant yet the advocates who were formerly represented by a law firm of Messrs Jane Kagu advocate and not Mr Kongere who was a partner for Messrs Muriu Mungai & Co Advocates.Additionally, Mr Kongere advocate had requested Mr Adika advocate to holding his brief and indeed he appeared on behalf of law firm of Jane Kagu taking that they regularly informed her of the outcome. Mr Kongere advocate in his supporting affidavit and during cross-examination admitted that there was an error caused by the advocate and that the same should not be visited to the 1st defendant.
33.The plaintiff/respondent held that the prayer for enlargement of time was not justifiable as they took over six (6) months to have taken action being filing the instant application and the further delay of 50 days to have filed documents before the Court of Appeal which according to the advocate it was inordinate and unreasonable delay for the 1sT defendant to be granted the enlargement of time. That is adequate for the facts of this case.
34.Now turning to the issues under sub-heading, the court would like to deal with each of the issues separately. Firstly on the issue of the stay of execution sought to enable the 1st defendant/applicant file an appeal. The rules governing this provision are founded under order 42 rule 6 of the Civil Procedure Rues, 2010. The power of court to grant a stay pending appeal is unfettered, the jurisdiction to do so. order 42 rule 6 of the Civil Procedure Rules 2010 states that:1.No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.2.No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied 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.
35.In considering whether to grant the stay of execution and/or temporary injunction, the High Court based on the doctrine of 'stare decisis' relies on settled decisions or precedents and the set out principles under the above provisions of the law. There are plethora of decided cases on the issue of grant of stay of execution pending appeal. For instance, in the Civil Appeal No 107 of 2015 – Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR the court held that:-
36.To strengthen this legal position further, I also make reference to the case of 'Canvass manufacturers Limited v Stephen Reuben Korunditu Civil application No 158 of 1994 [1994] LLR 4853 – where the court held that:-
37.Based on the above graphically set out principles, in the instant case, this honorable court will then proceed to determine whether the appellant/applicant herein has satisfied the required standard for granting of stay orders pending appeal. Firstly, the appellant/applicant must show that it may suffer substantial loss. It is evident from the above provisions of law that the court has discretion to issue an order of stay of execution. However, the said discretion must be exercised judicially and not capriciously. While considering all these ingredients the honorable court must always be privy and not far from being informed that the party who succeeded in getting a judgment in his or her favour should not be denied unnecessary from enjoying the fruit of their judgment.
38.While considering these conditions, the court also takes into consideration the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, Cap 21, sections 3, 13 and 19 of the Environment & Land Act, No 19 of 2011 and whether the intended appeal is arguable and not frivolous. The appellant must demonstrate to court that the application for stay ought to be allowed by court to prevent from rendering the intended appeal nugatory. Although the respondent did not file a response to the application, making it unopposed, but despite that the court still has to determine the application on its merits. In the case of 'Christopher Were Barasa & another v Joseph Ndichu Ngige (2021)eKLR, it was held that:-
39.The gist of this application is to ensure a balance of the scale of justice on fairness, equity and conscience to all the parties is attained. It’s a case which grants the court unfettered discretions of the court to ensure the following aspect. Firstly, the plaintiff who has judgment in their favour is not removed from the seat of justice as they continue to enjoy the fruits of their judgment.Secondly, the defendant/applicant who is aggrieved by the judgment are entitled to preferring an appeal and in accordance with the legal preposition founded in the appellate jurisdiction and that the appeal if it’s successful does not become nugatory that the stay of execution so long as they adhere with the aforesaid set out standards.In the instant case, the 1st defendant/applicant claimed to be the legal owner to the suit land which is adjoining to her matrimonial house where she had lived for over twenty (20) years. It’s this court’s view that there is sufficient cause.With regard to the sufficient loss likely to suffer should the orders be granted, the court is not convinced that this is a valid ground in that from March 9, 2022 when judgment was delivered todate, there has been no empirical evidence to demonstrate that any execution of the decree has been done by the plaintiff/respondent.
40.Further, the issue of delay on filing the application on October 23, 2020 from the date when the judgment was delivered on March 9, 2020 there has been no doubt a period of six (6) months. Although, there has been a set of rules on the maximum period and wish to rely on the decisions of 'Nahesh Kumar Aggarwal – Versus – Silas Kiptui Kipchilla & 2 Others (Supra) and Nicholas Kitoo Ara Korir Salat (Supra)' by the learned counsel for plaintiff/respondent on this aspect, extension of time is an equitable remedy and to entitle an applellicant to it, he must act equitably. It is incumbent upon such applicant to be candid and honest. He should be untruthful or try to mislead the Court. Therefore, it’s my view that indeed the filing of this application has been made on October 23, 2020 which is seven months from March 9, 2020 when the judgement was delivered clearly an undue and unreasonable delay from the stipulated statutory timeline of 30 days.Be that as it may, the 1st defendant having noted that has moved court under the provision of section 7 of the Appellate Court Jurisdiction and section 79G of Civil Procedure Act seeking for enlargement of time. I shall address the said issue more adequately.
41.Thirdly as records the issue of security for costs. This court observes that security for costs is to ensure the respondent once the appeal is not successful is able to be compensated for the damages caused thereof. The issue of costs is discretion of the court. From the pleadings, the 1st defendant/applicant has undertaken to abide by any instruction to be given by court. Furthermore, the defendant has held that the suit property is immovable and where a lot of investment has been made; for that reason the same should be adequate security in the event the appeal which they hold is arguable is not successful. Under this sub-heading, the honorable court is persuaded that the 1st defendant is ready and willing to place a security for costs as directed by this honorable court thereof.
Issue No (b) Whether the parties herein are entitled to the reliefs sought.
42.On whether the parties are entitled to the relief sought the court strongly feels it significant to just of all tackle the issue of the enlargement of time. This has been brought about under the provision of section 7 of the Appellate Jurisdiction Act, Cap 9 and section 79G of Civil Procedure Act. Section 7 provides:- 'time for lodging documents – The Chief Justice may from to time direct the hours during which the registry or any sub - registry of a superior court shall be open foe the receipt of documents lodged under the provisions of these rules'.While section 79G of Civil Procedure Acts provides:-
Issue No (c) who will bear the costs of this Suit.
43.It is well established that costs are at the discretion of court. Costs mean the award granted to a party at the conclusion of any legal action, process and proceedings in litigation. Under the provisions of section 27(1) of Civil Procedure Rules, 2010 provides that costs follow the events. Event means the result of the suit. In this case, the 4th defendant/applicant has succeeded in being granted the orders sought. Nonetheless, it’s fair that each party to bear their own costs.
VI. Conclusion and disposition
44.Ultimately, after conducting an in-depth analysis to the framed issues on this notice of motion application dated October 23, 2020 the honorable court proceeds to make the following orders:-a.That the notice of motion application dated October 23, 2020 be and is hereby allowed.b.That the 1st defendant/applicant be and is hereby directed to deposit a sum of Kenya Shillings two million five hundred thousand (Kshs 2,500,000/-) in an escrow joint account of the two the Law firms of Messrs Tindika Co Advocates and Kivuva Kitonga Advocates to hold as security for costs within the next thirty (30) days from the date of this ruling pending the hearing and final determination of the appeal before the Court of Appeal.c.That each party to bear their own costs.
RULING DELIVERED, SIGNED AND DATED AT MOMBASA ON THIS 3RD DAY OF OCTOBER 2022HON. JUSTICE MR. L.L. NAIKUNI (JUDGE)ENVIRONMENT AND LAND COURTMOMBASAIn the presence of:a. M/s Yumna Hassan Court Assistant;b. M/s. Kiragu Advocate holding brief for Mr. Tindika Advocate for the Plaintiff/Respondent;c. No appearance for Advocate for the 1st Defendant.