[2022] KEELC 1053 (KLR)
The court found that the applicant failed to demonstrate sufficient cause for the delay in filing the appeal, as required under section 79G of the Civil Procedure Act. The application was further undermined by inconsistencies in the case numbers cited in the supporting documents and the absence of a copy of the...
Source-derived case information.
- Citation
- [2022] KEELC 1053 (KLR)
- Parties
- Applicant: George Kabaka Owuor; Respondent: Elisha Opiyo Achieng; Interested Party: Jeremiah Obar Ndong
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 9 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application struck out as incompetent and devoid of merit
- Legal Topics
- Extension of Time, Leave to Appeal, Substitution of Parties, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kabaka Owuor
Applicant
Elisha Opiyo Achieng
Respondent
Jeremiah Obar Ndong
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the application is competent and merited in light of procedural requirements.
- 3 Whether the applicant was properly substituted as a party in the lower court proceedings.
Ratio Decidendi
The court found that the applicant failed to demonstrate sufficient cause for the delay in filing the appeal, as required under section 79G of the Civil Procedure Act. The application was further undermined by inconsistencies in the case numbers cited in the supporting documents and the absence of a copy of the decision or decree sought to be appealed from. The court also questioned whether the applicant was properly substituted as a party in the lower court proceedings. In light of these deficiencies, the application was deemed incompetent, bad in law, and devoid of merit. Consequently, the motion was struck out with half costs awarded to the interested party.
Court Disposition
application struck out as incompetent and devoid of merit
Orders
- The motion dated 4th August 2021 is struck out.
- Half costs of the motion are awarded to the interested party.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT LAND COURT OF KENYA
AT HOMABAY
MISC. APPLICATION NO. 9 OF 2021
(Formerly Migori ELC Misc. application No. E 021 of 2021)
GEORGE KABAKA OWUOR ……………..……………………APPLICANT
VERSUS
ELISHA OPIYO ACHIENG …………………………………..RESPONDENT
JEREMIAH OBAR NDONG …….…………….……..INTERESTED PARTY
RULING
1. By a Notice of Motion dated 4th August 2021 and filed herein on 28th September 2021 under Sections 1A,1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya, among other provisions of the law (the Motion herein), the applicant, George Kabaka Owuor through the firm for Ongaya Ombo Advocates, is seeking the following orders;
a) THAT leave be granted to the Applicant to file appeal out of time against the whole judgement and decree in case No. 100 of 2018 on 16th June, 2021.
b) THAT a certificate of delay be provided to the Applicant.
c) THAT the costs of this application be in the cause.
2. The Motion is anchored upon a ten (10) paragraphed supporting affidavit sworn on even date by the applicant and copies of a draft memorandum of appeal, a letter by the applicant’s counsel and a receipt marked as “GKO 1”, “GKO 2” and “GKO 3” respectively and annexed to the affidavit. The motion is further based on grounds (a) to (e) set out on it’s face.
3. Briefly, the applicant’s lamentation is that the court file was not available immediately the judgment was rendered in Homa Bay CMCC No. 100 of 2010. That he was sick and isolated as he had contracted Covid-19 Virus thus, delayed in issuing instructions on time, among other things.
4. The respondent and the interested party were duly served via email as shown in document marked as “GKO 1” herein. There was no response to the motion.
5. I have duly considered the entire motion. So, is the same competent and merited?
6. The motion is mounted under various legal provisions including sections 1A 1B 3 and 3A (supra). In dealing with the motion, I also bear in mind Articles 159 (2) (d) and 10 (2) (c) of the Constitution of Kenya, 2010.
7. Notably, time for filing of appeals from subordinate courts is provided for under section 79 G of the Civil Procedure Act Chapter 21 Laws of Kenya. Rules, 2010. This court is aware of Order 50 Rules 1 and 2, 6, 7 and 8 of the Civil Procedure Rules, 2010 relating to time inclusive of power to enlarge time, enlargement of time and computation of days.
8. Be that as it may, going by the preamble to the document marked as “GKO 1”, was the applicant the substituted defendant before the trial court as shown therein? This court is conscious of Order 1 Rule 10 Civil Procedure Rules, 2010 on substitution of parties in a suit. Is the intended Appeal by pauper under section 79G of the Civil Procedure Act Chapter 21 Laws of Kenya? By paragraph 2 of the supporting affidavit to the motion and on the face of the document marked as “GKO 1”, the decision sought to be appealed from was made in Homa Bay CMCC No. 100 of 2018. However, the documents marked as “GKO 2” and “GKO 3” reveal the suit therein as Homa Bay CMCC No. 100 of 2010. This is a puzzling!
9. Another puzzle is that there is no copy of decision or decree from the court that rendered the same and annexed to the motion. This court is indeed, aware of the definition of “court which passed a decree” as provided for under section 29 of the Civil Procedure Act Chapter 21 of Laws of Kenya.
10. Access to justice and fair hearing are anchored under Articles 48 and 50 (1) of the Constitution of Kenya, 2010. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system as held in the case of James Kanyiita Nderitu and another-vs-Marios Philotas Ghikas and another (2016) eKLR.
11. In the present motion, the Deputy Registrar of this court duly notified the applicant’s counsel regarding the hearing and ruling of the motion via email at hello@ongayaombo.com as shown in the letter (GKO 2), on Monday, December 6, 2021 at 04:36 PM GMT+3 and Monday, January 31, 2022 at 03:30 PM GMT+3 respectively. Today, Mr. G.S Okoth learned counsel for the interested party has appeared for the interested party.
12. In the foregone, I find the motion dated 4th August 2021 and duly filed in this court on 28th September 2021, incompetent, bad in law and devoid of merits. The same is hereby struck out with half costs of the motion to the interested party.
DELIVERED, DATED and SIGNED at Homa Bay this 16th day of February 2022.
G.M.A ONG’ONDO
JUDGE
Present:
Mr G.S Okoth, learned counsel for the interested party
Okello, court assistant