[2009] KEHC 3572 (KLR)
The court found that the applicant acted promptly after the decision by instructing his advocates and seeking proceedings within five days. The delay in filing the appeal was attributed to the Committee's delay in providing certified copies of the proceedings, not to any lack of diligence by the applicant. The...
Source-derived case information.
- Citation
- [2009] KEHC 3572 (KLR)
- Parties
- Applicant: Boniface Kinyenze Kiamba alias Boniface N. Kiamba; Respondent: Mbula Kavoni alias Mbula Katoni
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 53 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- I Lenaola
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Exercise of Judicial Discretion, Land Disputes Tribunal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Kinyenze Kiamba alias Boniface N. Kiamba
Applicant
Mbula Kavoni alias Mbula Katoni
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient and reasonable explanation for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time against the decision of the Eastern Provincial Land Disputes Committee.
Ratio Decidendi
The court found that the applicant acted promptly after the decision by instructing his advocates and seeking proceedings within five days. The delay in filing the appeal was attributed to the Committee's delay in providing certified copies of the proceedings, not to any lack of diligence by the applicant. The period of delay was not inordinate, and the explanation given was reasonable, especially considering the geographical distance involved. The court exercised its discretion to grant leave to appeal out of time, finding that the applicant was neither indolent nor guilty of laches, and that the interests of justice warranted allowing the application.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- Leave to appeal out of time is granted to the applicant.
- The appeal shall be filed within 21 days of this order.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Misc 53 of 2008
BONIFACE KINYENZE KIAMBA ALIASBONIFACE N. KIAMBA....APPLICANT
VERSUS
MBULA KAVONI ALIASMBULA KATONI ……………………......RESPONDENT
RULING
1. The Application before me is premised on section 8 of the Land Disputes Tribunals Act, section 3 and section 9 of the Civil Procedure Act and Order XLIX Rule 5 of the Civil Procedure Rules and the Applicant Boniface Kinyenze alias Boniface K. Kiamba seeks leave to appeal out of time against the decision of the Eastern Provincial Land Disputes Committee dated 11. 1.2008 in its case No. 31/2006. The reasons for delay in filing the appeal within the statutory 30 days are set out in the body of the Application.
2. In the said paragraphs he depones that the appeal before the Committee was heard on 11. 1.2008 and judgment was delivered on the same day. He then instructed his advocates on 16. 1.2008 to appeal against the decision and on the same day the advocates aforesaid applied for certified copies of the proceedings but after waiting for a month he enquired from his advocates and they had not received the proceedings. He returned to the Committee and was asked to pay Kshs. 2,300/= for the proceedings and he did so on 5. 3.2008. He eventually received the proceedings on 14. 3.2008 and his advocates filed the present Application on 30. 3.2008. He denies that he is guilty of any laches and insists that he has been intent on pursuing his right to an appeal and the delay in doing so was caused by the Committee.
3. In response, the Respondent in his Replying Affidavit sworn on 9. 3.2009 depones that the Applicant is a vexatious litigant and has twice lost cases against him. That he has sat also on his right of appeal and the Applicant’s mistakes should not be visited on him and that equity should not aid the indolent.
4. I have taken into account the submissions by the advocates for the parties but my considered view is that the period of delay in filing the appeal is not inordinate. I say so because time expired on 11. 3.2008 and proceedings were obtained on 16. 3.2008 while the present Application was filed on 30. 3.2008. It is also clear that the Applicant acted within 5 days of the decision to instruct his advocates to appeal and on the same day, they sought proceedings from the Committee to enable them prepare the appeal. Later, the Applicant personally followed up the proceedings until he obtained them. I cannot therefore find that he was indolent and on the other hand I find that he was alert and interested in pursuing his right of an appeal.
5. The explanation given is also reasonable in that the delay was caused by the Committee’s inability to respond to the letter of 16. 1.2008 in good time and obviously Embu is also a distance from Nairobi. I accept the explanation, in any event.
6. I will exercise discretion and grant leave to appeal out of time and the Appeal should in any event be filed within 21 days of this order. Costs shall abide the appeal.
7. Orders accordingly.
Dated and delivered at Machakos this 14th day of May 2009.
Isaac Lenaola
Judge
In the presence of: Mr. Kisebu for Applicant
Isaac Lenaola
Judge