[2015] KEHC 4364 (KLR)
The court found that the delay in filing the appeal was less than two months, taking into account the statutory period during which time does not run. Although the applicant did not provide detailed reasons for the breakdown in communication with his advocate, the court considered the subject matter—land—to be...
Source-derived case information.
- Citation
- [2015] KEHC 4364 (KLR)
- Parties
- Applicant: Eliud Wambua Kiangi; Respondent: Martha Ndunge Kasinga; Respondent: Jane Mutu Kasinga
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 51 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Appeal Out of Time, Judicial Discretion, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Wambua Kiangi
Applicant
Martha Ndunge Kasinga
Respondent
Jane Mutu Kasinga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the lower court's judgment.
- 2 Whether the delay in filing the appeal was inordinate or sufficiently explained.
- 3 Whether the memorandum of appeal raises arguable issues.
Ratio Decidendi
The court found that the delay in filing the appeal was less than two months, taking into account the statutory period during which time does not run. Although the applicant did not provide detailed reasons for the breakdown in communication with his advocate, the court considered the subject matter—land—to be emotive and recognized that the grounds of appeal raised arguable issues. The court determined that no prejudice would be suffered by the respondents that could not be compensated by costs. Accordingly, the court exercised its discretion to allow the application for leave to file the appeal out of time, with costs awarded to the respondents.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file an appeal out of time against the decision in Kilungu PMC Civil Case No. 39 of 2010.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISCELLANEOUS APPLICATION NO. 51 OF 2013
ELIUD WAMBUA KIANGI……….……………….……………APPLICANT
VERSUS
MARTHA NDUNGE KASINGA……....….…………….1ST RESPONDENT
JANE MUTU KASINGA……………………………….2ND RESPONDENT
RULING
The application dated 28th January, 2013 seeks orders that this Honorable court be pleased to grant leave to the applicants to file an appeal out of time against the decision of the Honorable Nyakweba P. M. in his Kilungu PMC Civil Case No. 39 of 2010 judgment.
The failure to file the appeal within time is attributed to the breakdown of communication between the Applicant and his advocate.
The application is opposed. According to the replying affidavit, the application herein was not filed within reasonable time and neither has the delay been explained. It is further contended that the Memorandum of Appeal has no chances of success.
The application was canvassed by way of written submissions which I have duly considered.
The lower court judgment was delivered on 24th October, 2012. The Memorandum of Appeal and the application herein were filed on 29th January, 2013. Taking into account that time does not run between the period 21st December and 13th January, the delay was less than two months. The delay was not inordinate.
The reason for the delay is given as breakdown of communication between the applicant and his advocate. No details have been given to show why there was breakdown of communication. Be as it may, I take into account that the subject matter is land which is an emotive issue in Kenya.
The memorandum of appeal raises grounds of lack of legal capacity to sue and the question of whether the judgment is against the weight of the evidence. These are arguable issues.
No prejudice will be suffered by the Respondent that cannot be compensated by way of costs. I am therefore inclined to exercise this court’s discretion in favour of the applicants. I allow the application with costs to the Respondents.
………………………………………
B. THURANIRA JADEN
Dated and delivered at Machakos this 6th day of May, 2015
………………………………………
B. THURANIRA JADEN
JUDGE