[2019] KEELC 1483 (KLR)
The court found that the applicants were not notified of the date of judgment, which was delivered in their absence and in the absence of all parties. The record indicated that the judgment was read and delivered in open court without the parties present. Given these circumstances and the absence of evidence to the...
Source-derived case information.
- Citation
- [2019] KEELC 1483 (KLR)
- Parties
- Applicant: Desmond Mutuma Mwiti; Applicant: Ashford Mwiti; Respondent: Duncan Muthomi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 29 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Legal Topics
- Leave to Appeal Out of Time, Judgment Delivery Procedure, Absence of Parties, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Desmond Mutuma Mwiti
Applicant
Ashford Mwiti
Applicant
Duncan Muthomi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to appeal out of time against the judgment delivered on 3.4.2019.
- 2 Whether the judgment was delivered in the absence of the parties and without notice to the applicants.
Ratio Decidendi
The court found that the applicants were not notified of the date of judgment, which was delivered in their absence and in the absence of all parties. The record indicated that the judgment was read and delivered in open court without the parties present. Given these circumstances and the absence of evidence to the contrary, the court held that the applicants had demonstrated sufficient cause for the delay in filing the appeal. Accordingly, the court exercised its discretion to allow the application for leave to appeal out of time, subject to the condition that the memorandum of appeal be filed within 14 days from the date of the ruling.
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time is granted to the applicants.
- The memorandum of appeal must be filed within 14 days from the date of this ruling, failing which the orders shall lapse.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
MISCELLANEOUS APPLICATION NO. 29 OF 2019
DESMOND MUTUMA MWITI..............1ST APPLICANT/INTENDED APPLICANT
ASHFORD MWITI................................2ND APPLICANT/INTENDED APPELLANT
VERSUS
DUNCAN MUTHOMI.............................................................................. RESPONDENT
RULING
1. Vide the application dated 2. 7.2019, applicant prays that he be granted leave to appeal out of time against the judgment delivered on 3. 4.2019 by Hon. J. Irura in Nkubu ELC no. 32 of 2018. The grounds in support of the application are set out in the body of the application and in the supporting affidavit.
2. Applicant avers that on 20. 1.2019, they were given directions that judgment would be delivered on 20. 3.2019 but on this latter date, the said judgment was differed to 15. 5.2019. However on 15. 5.2019, applicant learnt that the judgment was delivered on 3. 4.2019 without his notice and in absence of all parties where by his case was dismissed.
3. I have perused the decision delivered on 3. 4.2019 and at the tail end, the record reads as follows:
“Ruling read and delivered in open court in the absence of the parties………. 3. 4.2019”.
4. This court does not have the full record of the lower court. However going by the record so far available, I do find that the application is merited.
5. The application dated 2. 7.2019 is allowed on condition that the memorandum of appeal is filed within 14 days from the date of delivery of this ruling failure to which the orders granted herein shall lapse. No orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 9TH DAY OF OCTOBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Ms. Matei hodling brief for Kaumbi for applicant
Muriithi holding brief for Muriira for respondent
Respondent
HON. LUCY. N. MBUGUA
ELC JUDGE