[2017] KEELC 2957 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in seeking leave to appeal out of time. The applicant did not demonstrate any efforts made to ascertain the date of the ruling or provide evidence supporting the claim that the court file was missing. Furthermore, the court...
Source-derived case information.
- Citation
- [2017] KEELC 2957 (KLR)
- Parties
- Applicant: Abdulatiff Ahmed Yunus; Respondent: Hussein Mohamed Abdulkadir
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 28 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- OA Angote, JO Olola
- Legal Topics
- Leave to Appeal Out of Time, Ex Parte Judgment, Setting Aside Orders, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdulatiff Ahmed Yunus
Applicant
Hussein Mohamed Abdulkadir
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in seeking leave to appeal out of time.
- 2 Whether the issues raised in the lower court have already been conclusively determined by superior courts.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in seeking leave to appeal out of time. The applicant did not demonstrate any efforts made to ascertain the date of the ruling or provide evidence supporting the claim that the court file was missing. Furthermore, the court noted that the substantive issues regarding the suit property had already been conclusively determined by both this court and the Court of Appeal. As such, granting leave to appeal out of time would serve no useful purpose. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 28th July, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
CIVIL MISC. APPLICATION NO. 28 OF 2016
ABDULATIF AHMED YUNUS………….........................APPLICANT
VERSUS
HUSSEIN MOHAMED ABDULKADIR.....................RESPONDENT
RULING
1. The Application dated 28th July, 2016 is seeking for the following orders:
a. That this Honourable Court be pleased to grant leave to the Appellant to appeal out of time against the Ruling in Principal Magistrate Court at Lamu delivered by His Honourable J.W. Onchuru on the 29th day of September, 2015.
b. Costs be provided for in the cause.
2. The Application is based on the grounds that on 29th September, 2015, the lower court dismissed the Applicant’s Application seeking to set aside an ex-parte Judgment; that the Ruling was delivered in the absence of the Applicant or his advocate and that the Applicant or his advocate were not informed of the date of the delivery of the said Ruling.
3. According to the Applicant, the effect of the Ruling has condemned the him unheard and that the Advocate was told the file was missing after the delivery of the impugned Ruling.
4. In response, the Respondent deponed that the Applicant was duty bound to make a follow up on his matter in the lower court; that the Application in the lower court was an afterthought after the Court of Appeal held that the Applicant had to set aside the judgment in the lower court and that the issues pertaining to the suit land have since been dealt with by this Court in ELC Case No. 26 of 2011 and the Court of Appeal.
5. The parties filed brief submissions which I have considered.
6. The Applicant is seeking for leave to file an appeal against the Ruling of the lower court out of time.
7. The impugned Ruling arose out of the Appellant’s Application dated 22nd May, 2015 in Lamu PMCC No. 2 of 2001. The Ruling in the matter was delivered on 29th September, 2015 while the current Application was filed on 1st August, 2016.
8. Although the Applicant has deponed that he was not aware of the date of the Ruling, he has not informed the court the efforts he made to find out when the Ruling was going to be delivered.
9. The deposition that he was informed that the court file could not be found is not supported by any evidence by way in terms of a letter to the Executive Officer inquiring about the file.
10. The Applicant has therefore not given any good reason why it has taken him close to one year to seek leave to file an appeal out of time.
11. In any event, the issues raised in Lamu PMCC No. 2 of 2001 have been conclusively dealt with by this court and the Court of Appeal.
12. The Applicant only moved the lower court for setting aside the ex-parte orders in that court after that issue was raised by the Court of Appeal and this court.
13. Considering that this court and the Court of Appeal have rendered their decision on the issue of ownership of the suit property, the Applicant’s efforts to resuscitate the same issues does not serve any useful purpose.
14. For those reasons, the Application dated 28th July, 2016 is dismissed with costs.
DATED AND SIGNEDATMACHAKOSTHIS2NDDAY OFMAY, 2017.
O.A. ANGOTE
JUDGE
DATED, DELIVEREDANDSIGNEDATMALINDITHIS12THDAY OFMAY, 2017.
J.O. OLOLA
JUDGE