[2022] KEELC 2220 (KLR)
The court found that the applicants failed to provide sufficient material to justify the grant of leave to appeal out of time or a stay of proceedings. The judge noted that the application lacked critical information, such as the specific prayers in the dismissed application, the reasons for their dismissal, and the...
Source-derived case information.
- Citation
- [2022] KEELC 2220 (KLR)
- Parties
- Applicant: James Gatuna; Applicant: Mumbi Kibara; Respondent: Winfred Mepukori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E017 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Notice of Motion for Leave to Appeal Out of Time and Stay of Proceedings
- Outcome
- application dismissed
- Judges
- MN Gicheru
- Legal Topics
- Leave to Appeal Out of Time, Stay of Proceedings, Appeal Procedure, Dismissal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gatuna
Applicant
Mumbi Kibara
Applicant
Winfred Mepukori
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Notice of Motion for Leave to Appeal Out of Time and Stay of Proceedings
Legal Issues
- 1 Whether the applicants have provided sufficient material to warrant leave to appeal out of time against the lower court's ruling.
- 2 Whether a stay of proceedings in the lower court should be granted pending the determination of the intended appeal.
- 3 Whether the Notice of Appeal and Memorandum of Appeal should be deemed as duly filed and served despite being filed out of time.
Ratio Decidendi
The court found that the applicants failed to provide sufficient material to justify the grant of leave to appeal out of time or a stay of proceedings. The judge noted that the application lacked critical information, such as the specific prayers in the dismissed application, the reasons for their dismissal, and the implications of granting the orders sought. Without these details, the court could not properly assess the merits of the application, and granting the orders could result in a miscarriage of justice. The court emphasized that the applicants would have another opportunity to appeal if the final decision in the lower court was adverse to them. Accordingly, the application was...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 10th March, 2022 is disallowed in its entirety.
Full Case Text
Judgment text and source record
21 paragraphs
Gatuna & another (Legal Representative of the Estate of the late STEPHEN KIBARA GITAU) v Mepukori (Environment and Land Appeal E017 of 2022) [2022] KEELC 2220 (KLR) (30 June 2022) (Ruling)
Neutral citation: [2022] KEELC 2220 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Appeal E017 of 2022
M N Gicheru, J
June 30, 2022
Between
James Gatuna
1st Applicant
Mumbi Kibara
2nd Applicant
Legal Representative of the Estate of the late STEPHEN KIBARA GITAU
and
Winfred Mepukori
Defendant
Ruling
1. This ruling is on the Notice of Motion dated 10th March, 2022. It is brought under Sections 79G and 95 of the Civil Procedure Act, Order 42, Rule 6(1) and (6), Order 50, Rule 6 of the Civil Procedure Rules and all other enabling provisions of law.The motion seeks the following orders;(i)Leave to appeal out of time against the ruling and orders of Hon. Becky Cheloti Mulemia (SRM) delivered on 25th January, 2022. (ii)Stay of proceedings in MCELC Case No. E024 of 2011 pending the hearing and determination of the Applicant’s appeal filed in the High Court.(iii)That the Notice of Appeal and Memorandum of Appeal annexed hereto be deemed as duly filed and served.(iv)Costs of the application be provided for.
2. The Notice of Motion is supported by five grounds, supporting affidavit and two annexures.The gist of the above material is that the Applicant is aggrieved by the dismissal of her application dated 25th October, 2021 in Case No. E021/2021 pending in the lower Court.The dismissal happened on 25th January, 2022. The Notice of Appeal was filed on 11th March, 2022 which is outside the period allowed by law. The Applicant applied for a certified copy of proceedings and ruling dated 25th January, 2022 but they are yet to be supplied by the Executive Officer at the Lower Court.The dismissal of the Applicant’s application has caused extreme prejudice to her and she prays the same be reversed.
3. I have carefully considered the application in its entirety including the affidavits, grounds in support as well as the supporting affidavit. I have also considered Memorandum of Appeal.I do not find sufficient material placed before me to grant any of the prayers sought. As at now, I do not know what the prayers in the dismissed application were. I do not know why they were not allowed. I do not know what the implication of my allowing any of the prayers will be.Without all the missing links, my granting any of the prayers may occasion a miscarriage of justice. Since the matter is not yet concluded in the Lower Court, all is not lost to the applicant.She will have another chance to appeal if the suit is finally decided against the party on whose side she is. For now, I disallow the application dated 10th March, 2022.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 30TH DAY OF JUNE, 2022. M.N. GICHERUJUDGE