[1999] KECA 63 (KLR)
The court found that although the delay in filing the notice of appeal was inordinate, the applicant was unrepresented and had sought advice from the Chief Justice, acting promptly thereafter. Taking into account all the surrounding circumstances, including the lack of legal representation and the applicant's...
Source-derived case information.
- Citation
- [1999] KECA 63 (KLR)
- Parties
- Applicant: Hezekiel Paul Osewe; Respondent: Joyce Matete
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 295 of 1997
- Procedural Posture
- Civil Miscellaneous Application / Application for Extension of Time to Lodge and Serve Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Notice of Appeal, Unrepresented Litigants, Delay in Filing, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiel Paul Osewe
Applicant
Joyce Matete
Respondent
Procedural Posture
Civil Miscellaneous Application / Application for Extension of Time to Lodge and Serve Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted extension of time to lodge and serve a notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal is excusable given the circumstances.
- 3 Whether the applicant should be allowed to proceed as a poor person.
Ratio Decidendi
The court found that although the delay in filing the notice of appeal was inordinate, the applicant was unrepresented and had sought advice from the Chief Justice, acting promptly thereafter. Taking into account all the surrounding circumstances, including the lack of legal representation and the applicant's efforts to comply once advised, the court exercised its discretion to grant a final opportunity to the applicant to pursue the appeal. The application for extension of time was therefore allowed, subject to strict timelines for lodging the notice and record of appeal.
Court Disposition
application allowed
Orders
- The applicant must lodge a fresh notice of appeal within seven days from the date hereof.
- The applicant shall lodge his record of appeal within fourteen days from the date of lodging the notice of appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA AT KISUMU
CIVIL MISCELLANEOUS APPLICATION 295 OF 1997
HEZEKIEL PAUL OSEWE......................................APPLICANT
AND
JOYCE MATETE.................................................RESPONDENT
(Application for extension of time to lodge an serve Notice of Appeal out of time and as a poor person in an intended Ruling of the High Court of Kenya at Kisii (Mr. Mbaluto, J) dated 13th February, 1995 in
H.C.C.C. NO. 252 OF 1993)
R U L I N G
This is a land matter. The judgment the applicant wishes to appeal against was delivered way back in 1995 some four years ago. The judgment was on the 13th February, 1995 and the applicant filed his notice of appeal on the 15th February, 1995. That was within time. Both the applicant and the respondent are unrepresented and it is clear both of them are, naturally, not clear on the proceedings of the court. The applicant sought the advice of the Chief Justice in May, 1997.
The advice was given within the same month and thereafter he filed the present application. Though the delay is inordinate, taking into account all the surrounding circumstances of the case, I think I should give to the applicant a last chance. I allow this application and make the following orders:-
1. The application must lodge a fresh notice of appeal within seven days from the date hereof.
2. The applicant shall lodge his record of appeal within fourteen days from the date of lodging the notice of appeal.
3. The costs of this application shall be in the intended appeal. Those shall be my orders.
Dated and delivered at Kisumu this 16th day of March, 1999.
R. S. C. OMOLO
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JUDGE OF APPEAL
I certify that this a true copy of the original.
DEPUTY REGISTRAR