[2019] KEELC 1254 (KLR)

[2019] KEELC 1254 (KLR)

The court found that although there was a delay in filing the application to appeal, the applicant averred that they were not aware of the judgment as it was delivered in the absence of the parties. Upon perusal of the record, the court was satisfied that service was effected, but in the interests of justice and considering the absence of the parties at the time of delivery, the application to allow the appeal out of time was granted. The court exercised its discretion to allow the appeal on condition that the memorandum of appeal is filed and served within 14 days, failing which the orders would lapse.

Citation
[2019] KEELC 1254 (KLR)
Parties
Appellant: Eliphas Mutembei Gitonga; Respondent: Mbaabu Marete; Respondent: Gitonga Marete
Court
Environment and Land Court
Court Station
Environment and Land Court at Meru
Jurisdiction
Kenya
Judgment Date
14 October 2019
Case Number
Miscellaneous Application 25 of 2019
Procedural Posture
Miscellaneous Application / Ruling on Application to Allow Appeal Out of Time
Outcome
application allowed with conditions
Legal Topics
Service of Process, Appeal Out of Time, Judgment in Absence, Land Dispute
Source Language
English
Civil Procedure Land and Property Service of Process Appeal Out of Time Judgment in Absence Land Dispute

Case Brief

Summary, issues, holding and outcome

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Parties

Eliphas Mutembei Gitonga

Appellant

Mbaabu Marete

Respondent

Gitonga Marete

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Allow Appeal Out of Time

Legal Issues

  1. 1 Whether service of judgment was properly effected on the parties.
  2. 2 Whether the delay in filing the application to appeal was justified.
  3. 3 Whether the applicant should be granted leave to file the appeal out of time.

Ratio Decidendi

The court found that although there was a delay in filing the application to appeal, the applicant averred that they were not aware of the judgment as it was delivered in the absence of the parties. Upon perusal of the record, the court was satisfied that service was effected, but in the interests of justice and considering the absence of the parties at the time of delivery, the application to allow the appeal out of time was granted. The court exercised its discretion to allow the appeal on condition that the memorandum of appeal is filed and served within 14 days, failing which the orders would lapse.

Court Disposition

application allowed with conditions

Orders

  • The application of 10.6.2019 is allowed on condition that the memorandum of appeal is filed and served within 14 days from the date of this ruling.
  • Failure to comply with the above condition will result in the lapse of the orders granted herein.