Physical Planning Officer, Kericho County & 4 others v Langat (Civil Application E001 of 2022) [2022] KECA 1195 (KLR) (12 October 2022) (Ruling)
Neutral citation:
[2022] KECA 1195 (KLR)
Republic of Kenya
Civil Application E001 of 2022
LA Achode, JA
October 12, 2022
Between
Physical Planning Officer, Kericho County
1st Applicant
District Surveyor, Kericho County
2nd Applicant
District Lands Officer, Kericho County
3rd Applicant
Director Physical Planning
4th Applicant
Director of Survey
5th Applicant
and
David Kipkorir Langat
Respondent
(Application for leave to file Notice of Appeal out of time from the Ruling and Orders of the Environment and Land Court at Kericho (M.C Oundo. J.) delivered on 2nd December 2021 in Environment and Land Court ELC Petition no.1 of 2013)
Ruling
Introduction
1.By a notice of motion dated 14th January 2022, brought pursuant to rules 4, 5 and 82 (1) of this Court’s Rules and Article 159 of the Constitution of Kenya 2010, the Physical Planning Officer, District Surveyor, District Lands Officer, Director Physical Planning and Director of Survey all of Kericho County (the applicants herein) seek leave to file and serve an appeal out of time. They also pray that the application for stay of further proceedings in Kericho ELC Petition No. 1 of 2013 dated 31st December, 2021 and filed in Court on 12th January, 2022 be deemed as filed before this Court for directions. The respondent is David Kipkorir Langat.
2.This application is premised on the grounds on its face and an affidavit in support sworn by Janet Lang’at, Deputy Chief State Counsel on 14th January 2022. The said grounds are that the Environment and Land Court at Kisumu delivered a ruling in an application brought by the respondent in Kericho ELC No. 1 of 2013 alleging that the applicants had defied the judgment and decree of L.C Waithaka J. delivered on 5th May, 2015. The applicants were found to be in contempt of court and as a result they are set to be sentenced to a term in prison, in total violation of their Constitutional rights.
3.The applicants aver that they were ordered to recall a Part Development Plan (PDP) in relation to the suit land, which was approved in 1986 and subsequently implemented fully before the filing of this suit. At the time of filing, hearing and determination of the suit the PDP had been fully implemented and persons who were not party to the suit had settled and developed the suit land, hence there was nothing to be recalled. They state that they were neither served nor aware of the ruling dated 2nd December, 2021 and only became aware of it when they were served on 17th December, 2021. They filed the notice of appeal on the 24th December, 2021 and that the delay in filing was not deliberate, inordinate nor was it willful, but was excusable as the counsel handling the matter was bereaved on the 22nd December, 2021.
4.The applicants contest the entire finding of the learned Judge and urge that it will serve the interest of justice if they are granted leave to appeal. Further that innocent parties who were not privy to the suit will suffer substantial loss and damage if the orders sought are not granted and the intended appeal will be rendered nugatory.
5.In opposition, the respondent filed a replying affidavit sworn on the 27th January 2022 and deposed that the notice of appeal was filed on the 24th December, 2021 way after the statutory time lines since the impugned ruling was delivered on the 2nd December, 2021. Further that counsels on record for both parties were in court before the ELC Judge on the 24th of November, 2021, when the ruling date was postponed to 2nd December, 2021. They state that the ruling appealed against was in an application for contempt of the orders made in the ruling delivered on the 12th March 2015 which has never been reviewed or appealed against. They urge that the respondent has been denied entry and enjoyment of his legitimately acquired parcel of land.
Submissions
6.This application was disposed of by way of written submissions. The applicants’ submissions are dated 25th January, 2022 and those of the respondent are dated 3rd February, 2022.
7.In their submissions, the appellants urged that upon being served with the impugned ruling on the 17th December, 2021, they filed a notice of appeal on 24th December, 2021 together with an application seeking stay of the proceedings in the superior court under a mistaken belief that they were within the prescribed period. That they were not aware that the ruling had been deferred from 4th November, 2021 and delivered in their absence on 2nd December, 2021, since it was delivered without notice to them. It was their argument that 7 days out of time is not deliberate and not too inordinate as to prejudice the respondent.
8.They urged the court not to punish the client for an inadvertent error of the counsel and relied on the case of Vishwa Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) e KLR to buttress this argument.
9.In rebuttal, the respondents submitted that the applicants filed the notice of appeal 22 days after the ruling was delivered, which was in contravention of Rule 75 (2) of the Rules of the Court. They asserted that the delay occasioned was inordinate and therefore inexcusable. Further, that on the 4th November, 2021 in the presence of all counsels, the court postponed the ruling to 2nd December, 2021 when it was duly delivered. As such, it was their argument that the failure of the counsels of the applicants to attend court on the day scheduled for the ruling was sheer negligence.
Determination
10.The prayers sought by the applicants are a mixture of stay of proceeding and extension of time for filing notice of appeal. Applications for stay are heard by a full bench, whereas applications for extension of time are heard by a single Judge. Since this matter is before a single Judge, what can be determined is the application for extension of time only.
11.I have therefore considered the application, the grounds in support thereof, the submissions filed and the law, to determine whether the applicants are deserving of the orders sought. Rule 75 of the Court of Appeal Rules provides that notice of appeal should be filed within fourteen days of the date of the decision against which it is desired to appeal. Rule 4 of the Court of Appeal Rules provides that:
12.The case of Leo Sila Mutiso v Hellen Wangari Mwangi (1990) 2 EA 231 which is the locus classicous, laid down the parameters for consideration in an application for extension of time as follows:
13.Further, in Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, Civil Application No. 190 of 2019 it was stated as follows:
14.The impugned ruling was delivered on the 2nd of December 2021, hence the application ought to have been filed by 16th December 2021. This application was filed on 14th January 2022 one month and some twelve days after the ruling was delivered. The law does not prescribe a minimum or maximum period of delay. What is paramount is that reason(s) for the delay must be reasonable and plausible as stated in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet (2018) e KLR cited by the applicant to wit:
15.The applicant’s reasons for the delay in filing this notice of motion is that the counsel on record inadvertently filed the notice of appeal thinking that they were within the prescribed time, as they were not made aware of the ruling date. On the other hand, the respondent argued that counsels for both parties were present on the 4th of November, 2021 when the date of the ruling was postponed to 2nd of December, 2021 therefore they ought to have been present during the ruling date. In Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] eKLR the Court held inter alia that:
16.The applicants further contended that the mistake of the advocates should not be visited on the clients. In my view, the delay in filing the notice of appeal is not inordinate and it is well explained.
17.The applicants contended that they have an arguable appeal on the ground that the orders issued by the Superior Court could not be complied with, as at the time this suit was filed the Part Development Plan had been fully implemented and persons who were not party to the suit had settled and developed the suit land. Without going in to the merits of the appeal, I am satisfied that the intended appeal is arguable. In Muchugu Kiragu v James Muchugi Kiragu & another Civil Application No. NAI. 356 OF 1996 this court held that:
18.The court has also balanced the competing interests of the parties, that is, the injustice to the applicants, in denying them an extension, against the prejudice to the respondent in granting an extension and finds that in these circumstances, denying the extension of time will be more prejudicial to the applicants, than allowing would be to the respondent.
19.From the foregoing I find that the applicants have demonstrated the existence of the parameters set out in Leo Sila Mutiso (supra). Accordingly, I allow the application and make the following orders:a.That leave be and is hereby granted to the applicants to file and serve a notice of appeal out of time against the ruling and orders of the ELC at Kisumu (M.C Oundo) in ELC Petition No. 1 of 2013.b.That the notice of appeal filed in court on 24th December 2021be and is hereby deemed as duly filed.c.The applicants shall bear the costs of the application.
DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF OCTOBER, 2022.L.A. ACHODE............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar