[1998] KECA 76 (KLR)
The court found that although the order sought to be appealed against was made over seven years prior, the delay was not inordinate given the circumstances, including the deaths of the original applicants and the subsequent substitution. The court accepted that the motion was filed at the next available session and...
Source-derived case information.
- Citation
- [1998] KECA 76 (KLR)
- Parties
- Applicant: Atenga Ogamba; Applicant: Ombati Ogamba; Applicant: Zakariah Ogamba; Applicant: Joseph Ogamba Atenga; Respondent: Otundo Mochache
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 257 of 1997
- Procedural Posture
- Civil Application / Application for Leave to File Appeal Out of Time
- Outcome
- Application allowed.
- Legal Topics
- Extension of Time, Appeal Out of Time, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Atenga Ogamba
Applicant
Ombati Ogamba
Applicant
Zakariah Ogamba
Applicant
Joseph Ogamba Atenga
Applicant
Otundo Mochache
Respondent
Procedural Posture
Civil Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the delay in filing the appeal is so inordinate as to disentitle the applicants to the court's discretion.
- 2 Whether the substitution of deceased parties with the present applicants was properly effected.
- 3 Whether the mistake of counsel in citing deceased parties as applicants should affect the exercise of discretion.
Ratio Decidendi
The court found that although the order sought to be appealed against was made over seven years prior, the delay was not inordinate given the circumstances, including the deaths of the original applicants and the subsequent substitution. The court accepted that the motion was filed at the next available session and that the error in naming the deceased parties was a mistake of counsel that should not bar the applicants from relief. No objection was raised as to the competency of the motion, and the two-month delay after substitution was not considered excessive. The court therefore exercised its discretion in favour of the applicants and allowed the motion for extension of time to file...
Court Disposition
Application allowed.
Orders
- The motion for leave to file appeal out of time is allowed.
- The record of appeal shall be filed within 21 days of the date hereof.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU (CORAM: OMOLO, J.A. (IN CHAMBERS) CIVIL APPLICATION NO.NAI.257 OF 1997 (KSM 26/97) BETWEEN
ATENGA OGAMBA OMBATI OGAMBA..........................................APPLICANT AND OTUNDO MOCHACHE.................................................................RESPONDENT
(Application for leave to file appeal out of time in an intended appeal from an order of the High Court of Kenya at Kisii (Mr. Justice Patel) dated 27th May, 1991
in
H.C.C.C. NO.191 OF 1988) ******************* R U L I N G
Though the order sought to be appealed against was made on the 27th May, 1991 which is over seven years ago, there is really no such delay as would disentitle the present applicants to the exercise of my discretion in their favour.
It is an unchallenged fact that after the ruling a notice of appeal was filed two days out of time and that Gicheru JA. made an order on the 21st June, 1994 validating that notice.
Thereafter the previous applicants Atenga Ogamba and Ombati Ongamba both died and Mr Mugu says they died in 1996. The Present applicants Zakariah Ogamba and Joseph Ogamba Atenga made an application for substitution on the 24th January, 1997. That motion was granted by Tunoi JA. on the 13th March, 1997. The present motion was filed on the 6th March, 1997. Mr. Mugu says they did so because that was the next session for the court to sit in Kisumu. The motion was filed in wrong names, the dead parties being cited as the applicants, but it is clear the true applicants are the substituted parties and the mistake of counsel in citing the deceased parties ought not to deprive me of my discretion to do justice to the true parties before me. No objection was taken as to the competency of the motion. I do not think the two months delay is so inordinate that I ought to reject the motion.
Accordingly, I allow the motion and order that the record of appeal shall be filed within 21 (twenty-one) days of the date hereof. The costs of this motion shall be in the intended appeal. These shall be my orders.
Dated and delivered at Kisumu this 24th day of March, 1998.
R.C.S. OMOLO
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR