[2020] KEELC 3649 (KLR)
The court found that the applicant's delay in filing the appeal was satisfactorily explained, as there was no evidence that notice of judgment delivery was given to the parties as required by law. The mere act of pinning a notice outside the courtroom did not constitute proper notice. The absence of both parties and...
Source-derived case information.
- Citation
- [2020] KEELC 3649 (KLR)
- Parties
- Applicant: Beatrice Malesi; Respondent: Peter Ndiritu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 76 of 2019
- Procedural Posture
- Miscellaneous Application / Judgment on Application for Extension of Time to Appeal
- Outcome
- Application allowed. Extension of time to file appeal granted.
- Judges
- EO Obaga
- Legal Topics
- Extension of Time, Notice of Judgment, Appeals Process, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Malesi
Applicant
Peter Ndiritu
Respondent
Procedural Posture
Miscellaneous Application / Judgment on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds for the court to exercise its discretion to extend time for filing an appeal.
- 2 Whether lack of notice of judgment delivery constitutes a valid reason for delay in filing an appeal.
- 3 Whether the intended appeal raises arguable grounds.
Ratio Decidendi
The court found that the applicant's delay in filing the appeal was satisfactorily explained, as there was no evidence that notice of judgment delivery was given to the parties as required by law. The mere act of pinning a notice outside the courtroom did not constitute proper notice. The absence of both parties and their advocates at the delivery of judgment further supported the applicant's position. The court also determined that the intended appeal raised an arguable ground regarding the subdivision and sale of the suit property. The respondent would not suffer prejudice if the appeal was allowed, especially since he claimed his property was separate. Consequently, the court exercised...
Court Disposition
Application allowed. Extension of time to file appeal granted.
Orders
- The applicant is granted an extension of 14 days to file the appeal.
- Costs of the application shall be costs in the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI LAW COURTS
ELC CIVIL MISC APP.NO 76 OF 2019
BEATRICE MALESI..................................................................................APPLICANT
VERSUS
PETER NDIRITU & ANOTHER.........................................................RESPONDENT
JUDGEMENT
1. By a Notice of Motion dated 7th May 2019, the Applicant sought leave to file an appeal against the Judgement of M/s I Gichohi SRM delivered on 24th December 2018. The Applicant argues that the case was heard at Milimani Commercial Court within Nairobi but as at the time the Judgement was delivered, the trial magistrate had been transferred to Kangema Law Court. The Judgement was delivered in Nairobi on her behalf by Mr D O Mbeja S RM.
2. The Applicant contends that there was no Notice of delivery of Judgement issued and as such the Applicant only came to know about it when the 1st Respondent went to the ground to sub divide the suit property. It is then that the Applicant informed her Advocate who went to court and found out that Judgement was delivered in the absence of the Advocates for the parties.
3. The 1st Respondent has opposed the Applicant’s application through a replying affidavit sworn on 16th September 2019. The 1st Respondent contends that there was a notice of delivery of Judgement which was pinned outside the door of the court where the Judgement was delivered; that the Applicant is out to delay the realization of the fruits of his judgement and that the intended appeal has no arguable ground as the 1st Respondents property is separate from that of the Applicant and that the issue of subdivision does not arise.
4. I have considered the Applicant’s application and the opposition thereto by the Respondent. I have also considered the submissions by the parties. The only issue for determination is whether the Applicant has demonstrated that she has grounds upon which this court can exercise its discretion to extend time. In Paul Musili Wambua-Vs-Attorney General & 2 Others (2015) eKLR Justice Koome J A stated as follows:-
“It is now well settled by a long line of authorities by this court that the decision of whether or not to extend time for filing an appeal the Judge exercises unfettered discretion However, in the exercise of such discretion, the court must act upon reasons not based on whims or caprice. In general the matters which a court takes into account in deciding whether to grant an extension of time are; the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted”.
5. In the instant case, Judgement was delivered on 24th December 2018. This application was filed on 8th May 2019. This was a delay of over four months. What was the reason for the delay?. The Applicant states that there was no notice of delivery of Judgement given. The Applicant came to know about the Judgement when the 1st Respondent went to the ground to sub divide the suit property. I have looked at the Judgement which was delivered. There were no advocates present. Though the Respondent claims that there was a notice pinned outside the court rooms, that does not amount to a notice to the parties. Order 21 Rule 1 of the Civil Procedure Rules provides that if judgement is not delivered at once or within 60 days from conclusion of the trial notice shall be given to parties or their advocates.
6. There is no evidence that notice was given as required because judgement was not delivered within the 60 days given under Order 21 Rule 1. Even if there was notice pinned outside the court room, there is no way the parties would have known about the matter. The Respondent or his lawyers were not in court either. I therefore find that the delay has been explained.
7. The Applicant contends that the 2nd Respondent had allocated it to the suit property but that the same Respondent later illegally subdivided it and sold it to someone else who in turn sold it to the 1st Respondent. It is therefore clear that the appeal raises an arguable ground. It has been said that an arguable appeal is not one which will necessarily succeed.
9. The 1st Respondent’s contention is that his plot is separate from that of the Applicant. If that be the case, I do not see what prejudice he will suffer if the Applicant is allowed to appeal. If the 1st Respondent has constructed permanent structures which are on his land, there is no prejudice which he will suffer. I therefore find that this is a proper case where to exercise discretion in favour of the Applicant. I therefore allow the Applicant’s application and extend the period for filing the appeal by 14 days. Costs of this application shall be costs in the appeal. It is so ordered.
Dated, Signed and delivered at Nairobi on this 30thday of January 2020.
E.O.OBAGA
JUDGE
In the presence of:
Mr. Mwangi for 1st defendant /respondent
Mr. Owange for 2nd defendant.
Court Assistant : Waweru
E.O. OBAGA
JUDGE