[2024] KECA 778 (KLR)
The Court found that the delay in filing the notice of appeal was not inordinate and was satisfactorily explained by the applicants, who could not access the judgment in time due to administrative reasons beyond their control. The intended appeal was not frivolous, as shown by the draft memorandum of appeal. The...
Source-derived case information.
- Citation
- [2024] KECA 778 (KLR)
- Parties
- Applicant: Tammoima Jmb Gichacha; Applicant: Gideon Cairo Mitonda; Respondent: Elizabeth Makori Siringi; Respondent: Norah Mong’Are Makori; Respondent: Kajiado North Land Registrar - Ngong; Respondent: The Attorney General; Respondent: Kenya Commercial Bank
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E158 of 2023
- Procedural Posture
- Civil Appeal / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- DK Musinga
- Legal Topics
- Extension of Time, Notice of Appeal, Appeal Rights, Delay Explanation, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tammoima Jmb Gichacha
Applicant
Gideon Cairo Mitonda
Applicant
Elizabeth Makori Siringi
Respondent
Norah Mong’Are Makori
Respondent
Kajiado North Land Registrar - Ngong
Respondent
The Attorney General
Respondent
Kenya Commercial Bank
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the notice of appeal.
- 2 Whether the intended appeal has arguable grounds and is not frivolous.
- 3 Whether granting the extension would prejudice the respondents.
Ratio Decidendi
The Court found that the delay in filing the notice of appeal was not inordinate and was satisfactorily explained by the applicants, who could not access the judgment in time due to administrative reasons beyond their control. The intended appeal was not frivolous, as shown by the draft memorandum of appeal. The respondents did not oppose the application, and no significant prejudice would be suffered by them if the extension was granted. The applicants, being in occupation of the disputed property, were entitled to exercise their constitutional right of appeal. Therefore, the application for extension of time was allowed, with directions for filing and serving the notice of appeal and...
Court Disposition
application allowed
Orders
- The application for extension of time to file and serve the notice of appeal is allowed.
- The notice of appeal shall be filed and served within fourteen (14) days from the date of this ruling.
Full Case Text
Judgment text and source record
33 paragraphs
Gichacha & another v Siringi & 4 others (Civil Appeal (Application) E158 of 2023) [2024] KECA 778 (KLR) (5 July 2024) (Ruling)
Neutral citation: [2024] KECA 778 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal (Application) E158 of 2023
DK Musinga, JA
July 5, 2024
Between
Tammoima Jmb Gichacha
1st Applicant
Gideon Cairo Mitonda
2nd Applicant
and
Elizabeth Makori Siringi
1st Respondent
Norah Mong’Are Makori
2nd Respondent
Kajiado North Land Registrar - Ngong
3rd Respondent
The Attorney General
4th Respondent
Kenya Commercial Bank
5th Respondent
(An Application for extension of time to lodge and file a notice of appeal out of time from the judgment and decree of the Environment and Land Court at Nairobi (S. Okongo, J.) delivered on 9th February 2023 in ELC No. 691 of 2016 Environment and Land Case Civil Suit 691 of 2016 )
Ruling
1. The applicants’ motion dated 24th April 2023 seek leave to lodge an appeal from the judgment of the Environment and Land Court (ELC), delivered on 9th February 2023 in Nairobi ELC No. 691 of 2016. The subject matter of the dispute in the said suit is a parcel of land known as Ngong/Ngong/26365, which is occupied by the applicants, having purchased it from the 2nd respondent.
2. The applicants state that the impugned judgment was delivered by Okang’o, J, from Kisumu where he had been transferred to, but they did not get a copy of the same until 15th March 2023 because the file had not been transmitted to Nairobi. The applicants therefore could not have filed a notice of appeal within fourteen days from the date of delivery of the judgment.
3. The applicants believe that their intended appeal has good chances of success, and have annexed to their affidavit in support of their application and a draft memorandum of appeal.
4. The application is not opposed as none of the respondents has filed any replying affidavit or submissions.
5. The principles that guide this Court in an application of this nature are well settled. The Court has to consider, inter alia, the period of delay; the reasons for the delay; the chances of success of the intended appeal; and the degree of prejudice to the respondent if the application is allowed. See Leo Sila Mutiso v Hellen Wangari Mwangi[1999] 2 EA 231
6. In my view, the delay, which is not inordinate, has been well explained. From the draft memorandum of appeal, the intended appeal is not frivolous. The respondents will not suffer great prejudice if this application is granted. The applicants are in occupation of the disputed property and wish to exercise their constitutional right of appeal.
7. Consequently, I allow the application and further direct that the notice of appeal be filed and served within fourteen (14) days from the date of delivery of this ruling, and the record of appeal be filed and served within thirty (30) days from the date of filing the notice of appeal. I make no order as to costs of the application.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JULY, 2024. D. K. MUSINGA, (P).......................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR