[2004] KEHC 1371 (KLR)
The court found that although the applicants did not invoke Order 49 rule 5 of the Civil Procedure Rules or indicate service details at the bottom of the application, these omissions were not fatal since the respondent was served and appeared through counsel. The court accepted the applicants' explanation that they...
Source-derived case information.
- Citation
- [2004] KEHC 1371 (KLR)
- Parties
- Applicant: Halima Abdi Mohamed; Applicant: Abdi Hamid Sheikh Mohamed; Respondent: Hawa Maalim Ibrahim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 84 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time granted; costs to the respondent.
- Legal Topics
- Extension of Time to Appeal, Leave to Appeal Out of Time, Appeals From Kadhis Court, Service of Process, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Halima Abdi Mohamed
Applicant
Abdi Hamid Sheikh Mohamed
Applicant
Hawa Maalim Ibrahim
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to appeal out of time against the Kadhi's Court judgment.
- 2 Whether failure to invoke specific procedural rules or to indicate service details is fatal to the application.
- 3 Whether the applicants have demonstrated sufficient cause for extension of time.
Ratio Decidendi
The court found that although the applicants did not invoke Order 49 rule 5 of the Civil Procedure Rules or indicate service details at the bottom of the application, these omissions were not fatal since the respondent was served and appeared through counsel. The court accepted the applicants' explanation that they were ignorant of the statutory time limit for filing an appeal and had acted promptly once they became aware of the error. The court held that the interests of justice required both parties to have an opportunity to litigate the dispute over land left by a deceased relative. Consequently, the court exercised its discretion under Section 79G of the Civil Procedure Act to grant...
Court Disposition
Application for leave to appeal out of time granted; costs to the respondent.
Orders
- Applicants granted leave to file and serve a memorandum of appeal within 30 days.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATMOMBASA
MISC CIVIL APP NO. 84 OF 2004
1. HALIMA ABDI MOHAMED
2. ABDI HAMID SHEIKH MOHAMED………………………… APPLICANTS
VERSUS
HAWA MAALIM IBRAHIM………………………………………… RESPONDENT
Coram: Before Hon. Justice Mwera
Magolo for the Applicant
M. Koli for the Respondent
Court clerk – Sango
R U L I N G
By their notice of motion dated 10-2-04 which was brought under SS. 79 G, 3A Civil Procedure Act, the applicants seek orders that they be granted leave to appeal out of time.
Mr. Magolo told this court that the Kadhi at Garissa gave judgement in K.C. No.27 of 2003 on 27-8-03 regarding a certain piece of land known as PLOT NUMBER 107 GARISSA. That both the applicants (being a mother and daughter) occupy this land on which the deceased one ISSACK ABDI FARAH had built a home for them.
That the said Issack had another wife, the respondent who was occupying Plot No.67 in the same town. That the respondent then sued the applicants over the said plot No.107 and got judgement.
That the applicants being dissatisfied with that judgement and acting in person filed Civil Appeal No.166 of 2003 on 27. 10. 2003. When they instructed Mr. Magolo to take over the appeal, he noticed that it had been filed 2 months after the appeal period expired and without the court’s leave. That the applicants were ignorant of the statutory time within which to appeal (30 days) and that appeal was withdrawn. That all the time the respondent has made moves to evict the applicants which action, it seems, will result in hardship and loss to them unless stay orders are granted. That all the time the applicants have been anxious to appeal and made moves though in ignorance and error, in that direction. That as per the draft memorandum of appeal annexed to this application, the applicants have an arguable appeal and therefore the orders sought ought to be granted.
Mr. M. Koli told the court that this application was meant to keep the respondent away from enjoying her fruits of litigation; that the affidavit in support did not state that the 2nd applicant had been authorized to swear it on behalf of the 1st applicant and at its bottom the application did not say on whom it was meant to be served. And that the applicants did not invoke the provisions of 049 r 5 Civil Procedure Rules on extension of time.
Having heard both sides it is noted that even if 049 r 5 Civil Procedure Rules is not invoked, no harm is done as that provision deals with what S.79 G mandates. The application may not bear the note as to who to serve at its bottom but this court does not consider that as a fatality. After all the respondent was served and Mr. Koli Advocate appeared. A stay of the Kadhi’s Court orders was sought but without citing the provisions on staying execution. However looking at the whole matter, this court is inclined to grant the applicants leave to file and serve a memorandum of appeal within 30 days. The dispute is over land left by a deceased relative. Each side should be allowed to litigate over the issue as best possible. Prayers 1 and 2 granted but costs will go to the respondent.
Orders delivered on 17th September, 2004.
J.W. MWERA
JUDGE