[2005] KEHC 2543 (KLR)
The court found that although the applicant did not require proceedings to file the appeal, the delay was due to counsel's mistaken belief that proceedings were necessary. The variance in dates between the motion and the supporting affidavit was explained as a typing error and did not prejudice the respondents. The...
Source-derived case information.
- Citation
- [2005] KEHC 2543 (KLR)
- Parties
- Applicant: Elias Anyango Onditi; Respondent: Wilson Odongo Nyabonge Asha; Respondent: Ochieng Mathews Nyabonge; Respondent: District Land Registrar Migori District; Respondent: Attorney General; Respondent: Harson Okongo Opiyo; Respondent: Ondeyo Oruwa; Respondent: Orina Adhawo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 207 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Elias Anyango Onditi
Applicant
Wilson Odongo Nyabonge Asha
Respondent
Ochieng Mathews Nyabonge
Respondent
District Land Registrar Migori District
Respondent
Attorney General
Respondent
Harson Okongo Opiyo
Respondent
Ondeyo Oruwa
Respondent
Orina Adhawo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the delay in filing the appeal was sufficiently explained.
- 3 Whether the variance in dates between the motion and supporting affidavit affects the application.
Ratio Decidendi
The court found that although the applicant did not require proceedings to file the appeal, the delay was due to counsel's mistaken belief that proceedings were necessary. The variance in dates between the motion and the supporting affidavit was explained as a typing error and did not prejudice the respondents. The court determined that the applicant had demonstrated a genuine intention to appeal and that no prejudice would be suffered by the respondents if the application was allowed. Consequently, the court exercised its discretion to grant the extension of time for filing the appeal.
Court Disposition
application allowed
Orders
- Applicant granted leave to file appeal within 15 days from the date of the ruling.
- Applicant to pay costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII MISC. CIVIL CASE NO.207 OF 2004
ELIAS ANYANGO ONDITI …………………………………………. APPLICANT.
VERSUS
WILSON ODONGO NYABONGE ASHA )
OCHIENG MATHEWS NYABONGE )
DISTRICT LAND REGISTRAR MIGORI DISTRICT )
ATTORNEY GENERAL ) ....... RESPONDENTS
HARSON OKONGO OPIYO )
ONDEYO ORUWA )
ORINA ADHAWO )
RULING
The applicant seeks court to enlarge time for him to file appeal.
Judgment was delivered on 5th August 2004. He did not file appeal within 30 days. Mr. Nyakango explained that the delay was because he applied for proceedings from the lower court and the same were supplied late.
Mr. Ogutu opposed the application. He pointed out that the supporting affidavit has dates varying to the ones shown on the face of the record. The motion therefore is at variance with the supporting affidavit.
Further it was submitted that the applicant did not require proceedings to file appeal. The reasons he gave why he was late in filing appeal were not tenable. I have considered the application and the reply. Indeed the applicant did not need proceedings to file the appeal. He could have filed the appeal without the proceedings.
Also it is true that the dates on the face of the motion are at variance with the ones in the supporting affidavit but this was explained as typing error.
The applicant states clearly he was desirous to appeal and it seems it was his counsel who had the notion that he had to get proceedings first. I don’t see any prejudice respondent will suffer if I allow this application. He himself has appealed against the same judgment.
In the circumstances the application is allowed. Applicant granted leave to file his appeal within 15 days from today’s date. He will also pay costs of this application.
Date 10th May 2005
KABURU BAUNI
JUDGE
cc. Mobisa
Mr. Nyakongo for Applicant.
N/A for Respondent.
KABURU BAUNI
JUDGE