[2021] KEELC 969 (KLR)
The court found that the applicant had provided sufficient reasons for the delay in filing the appeal, specifically citing sickness supported by medical reports and the process of obtaining letters of grant ad litem. The court determined that these reasons justified the grant of leave to appeal out of time....
Source-derived case information.
- Citation
- [2021] KEELC 969 (KLR)
- Parties
- Applicant: Florence Gatwiri Kubai (Suing on behalf of Henry Kubai – Deceased); Defendant: Robert M’Ngai M’Iturigu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E017 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Leave to Appeal, Abatement of Suit, Legal Representative Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Gatwiri Kubai (Suing on behalf of Henry Kubai – Deceased)
Applicant
Robert M’Ngai M’Iturigu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether sufficient cause has been shown to warrant extension of time to appeal out of time.
- 2 Whether the applicant's sickness and process of obtaining grant ad litem constitute sufficient reason for delay.
- 3 Whether granting leave to appeal out of time will prejudice the respondent.
Ratio Decidendi
The court found that the applicant had provided sufficient reasons for the delay in filing the appeal, specifically citing sickness supported by medical reports and the process of obtaining letters of grant ad litem. The court determined that these reasons justified the grant of leave to appeal out of time. Furthermore, the court held that the intended appeal raised arguable issues, including whether the respondent had capacity to sue a deceased person without a legal representative and whether the suit in the lower court had abated under Order 24 of the Civil Procedure Rules. The court concluded that granting leave would not prejudice the respondent and exercised its discretion to allow...
Court Disposition
application allowed
Orders
- Leave to appeal out of time is granted.
- The appeal shall be filed within 7 days from the date of this ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
MISCELLANEOUS APPLICATION CASE NO. E017 OF 2021
FLORENCE GATWIRI KUBAI
(Suing on behalf ofHENRY KUBAI – Deceased)................................APPLICANT
VERSUS
ROBERT M’NGAI M’ITURIGU.......................................................DEFENDANT
RULING
1. By a motion dated 28. 5.2021 brought under Order 51 rules 1, 3 and 4 of the Civil Procedure Rules, Articles 48 and 159 of the Constitution, the applicant seeks leave to appeal out of time against a ruling delivered on 21. 1.2021 in Tigania PMCC No. 11 of 2020.
2. The reasons given on the face of the application and the supporting affidavit sworn on 28. 5.2021 are: that of sickness, the appeal raised arguable point, delay is not inordinate and there will be no prejudice to the respondent.
3. Further the applicant has attached to the affidavit a copy of a limited grant issued on 4. 1.2021 for the estate of Henry Kubai who was the defendant in the lower court. The grant indicates he died on 15. 6.2021.
4. The respondent opposes the notice of motion through a replying affidavit sworn on 5. 10. 2021 on the grounds that; there has been inordinate delay; there is prejudice since the applicant is illegally occupying the subject land; the preliminary objection was properly dismissed and that the applicant should await the outcome of the lower court case.
5. Having looked at the rival submissions and pleadings, while the court has discretion to extend time under Sections 95 & Section 79 (G) of the Civil Procedure Act a party seeking such orders has to show sufficient reason and that no prejudice will be occasioned to the respondent if the orders sought are granted.
6. The applicant has alleged sickness as per the attached medical reports. There is also evidence the applicant applied for letters of grant ad litem. To my mind these are sufficient reasons to justify grant of the orders sought.
7. Similarly, the intended appeal raises issues. One, whether the respondent had capacity to institute a suit against a deceased person without bringing in a legal representative; two, whether the lower court suit is still ripe on account of abatement under Order 24 of the Civil Procedure Rules.
8. Due to the foregoing the court finds there will be no prejudice to the respondent by granting leave to appeal out of time. The application is allowed. The appeal shall be filed within 7 days from the date hereof.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17TH DAY OF NOVEMBER, 2021
In presence of:
Robert M’Ngai – present
Applicant – absent
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE