[2019] KEHC 5036 (KLR)
The court found that the applicant had no knowledge of the date when the judgment was scheduled to be delivered and only became aware of the judgment after the appeal period had lapsed. The court held that the applicant could not be held responsible for failing to attend court or file an appeal within time when he...
Source-derived case information.
- Citation
- [2019] KEHC 5036 (KLR)
- Parties
- Applicant: David Barrack Otieno Mruka; Respondent: Alima Nyangweso Aoga; Respondent: George Onyango Aoga
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 21 of 2018
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal
- Outcome
- Leave to appeal out of time granted.
- Legal Topics
- Leave to Appeal, Late Filing, Service of Judgment, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Barrack Otieno Mruka
Applicant
Alima Nyangweso Aoga
Respondent
George Onyango Aoga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the judgment dated 29th June 2018.
- 2 Whether lack of notice of the judgment date excuses the applicant's failure to file an appeal within time.
Ratio Decidendi
The court found that the applicant had no knowledge of the date when the judgment was scheduled to be delivered and only became aware of the judgment after the appeal period had lapsed. The court held that the applicant could not be held responsible for failing to attend court or file an appeal within time when he had no notice of the judgment date. The respondent's challenge to the applicant's standing was deemed more appropriate for the intended appeal rather than as a bar to granting leave. Consequently, the court exercised its discretion to grant the applicant leave to appeal out of time, allowing him seven days from the date of the ruling to lodge his appeal.
Court Disposition
Leave to appeal out of time granted.
Orders
- Leave is granted to the applicant to lodge his appeal against the judgment dated 29th June 2018.
- The applicant is allowed seven days from the date of this ruling to lodge the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. 21 OF 2018
IN THE MATTER OF THE ESTATE OF PHOEBE OMONDI MIGOYE (DECEASED)
DAVID BARRACK OTIENO MRUKA................PETITIONER/APPLICANT
VERSUS
ALIMA NYANGWESO AOGA......................1ST OBJECTOR/RESPONDENT
GEORGE ONYANGO AOGA.......................2ND OBJECTOR/RESPONDENT
RULING
The application dated 22nd October 2018 sought leave of the court, to enable the Petitioner lodge an appeal.
1. The Petitioner wishes to have an opportunity to appeal against the Judgment dated 29th June 2018.
2. It was the Applicant’s case that he was not aware of the date when the Judgment was scheduled to be delivered.
3. Indeed, it was only after the lapse of the period within which an appeal could have been lodged that the Applicant first became aware of the Judgment.
4. In answer to the application, Miss Akoth, the learned advocate for the
Respondent, submitted that the Applicant had no right to appeal against the Judgment because he was not a relative of the deceased, PHOEBE OMONDI MIGOYE.
5. Counsel noted that whilst the Applicant had claimed to be a son of the deceased, he later said that the deceased had adopted him.
6. During the hearing of the application, the court verified that on 29th June 2018, both parties were not in court when the judgment was being
delivered.
7. Secondly, the Respondent confirmed that he was unaware as to whether or not the Applicant was ever notified that the court would deliver its judgment on 29th June 2018.
8. I find that the Applicant had absolutely no information about the date when the court was scheduled to deliver the judgment. Therefore, the Applicant cannot bear any responsibility for failing to attend court, when he had no reason to go to court on that date.
9. I also find that the Applicant first became aware about the judgment after the lapse of the period when he could have lodged an appeal.
10. The challenge put forward by the Respondent would appear to be more of an answer to the intended appeal than a reason to deny the Applicant an opportunity to purse his legal right.
11. Accordingly, I now grant leave to the Applicant to lodge his appeal against the judgment dated 29th June 2018.
12. He is allowed SEVEN DAYSfrom today to lodge his said appeal.
13. Finally, I order that the costs of the application shall be in the cause in the intended appeal. If the appeal is successful, the Applicant will also be awarded the costs of the application.
14. On the other hand, if the appeal fails or does not take-off, the Applicant will pay the costs of the application to the Respondent.
DATED, SIGNED and DELIVERED at KISUMU
This 9th day of July 2019
FRED A. OCHIENG
JUDGE