[2006] KECA 29 (KLR)
The court found that the applicant acted promptly in seeking to revive the appeal after the previous one was struck out for procedural reasons. There was no evidence of laches or undue delay, and any potential prejudice to the respondents could be remedied by an award of costs. The court also considered that the...
Source-derived case information.
- Citation
- [2006] KECA 29 (KLR)
- Parties
- Applicant: Jackson Sabatia; Respondent: Elizabeth Amaiza; Respondent: The Attorney-General; Respondent: The Principal Magistrate’s Court at Kapsabet; Respondent: The Kapsabet Land Disputes Tribunal
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 183 of 2006
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Notice of Appeal and Record of Appeal Out of Time
- Outcome
- Application for extension of time granted.
- Legal Topics
- Extension of Time, Appeal Procedure, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Sabatia
Applicant
Elizabeth Amaiza
Respondent
The Attorney-General
Respondent
The Principal Magistrate’s Court at Kapsabet
Respondent
The Kapsabet Land Disputes Tribunal
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Notice of Appeal and Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted extension of time to file and serve notice of appeal and record of appeal out of time.
- 2 Whether any prejudice would be occasioned to the respondents by granting the extension.
- 3 Whether the intended appeal is frivolous or raises arguable issues.
Ratio Decidendi
The court found that the applicant acted promptly in seeking to revive the appeal after the previous one was struck out for procedural reasons. There was no evidence of laches or undue delay, and any potential prejudice to the respondents could be remedied by an award of costs. The court also considered that the subject matter was land, which is of significant importance, and that the parties should be given an opportunity to have the dispute heard on its merits. The opposition by the 1st respondent, based on the alleged frivolity of the intended appeal, was not sufficient to deny the applicant the extension sought. Accordingly, the court exercised its discretion in favour of the...
Court Disposition
Application for extension of time granted.
Orders
- Time extended for filing and serving notice of appeal; notice to be filed and served within seven (7) days of the ruling.
- Record of appeal to be filed within 21 days after service of the notice of appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU CIV APPLI 183 OF 2006
JACKSON SABATIA …...……..…………................................………………….. APPLICANT
AND
ELIZABETH AMAIZA …….….....………………...............................……… 1ST RESPONDENT
THE ATTORNEY-GENERAL ………..........……..............................……….. 2ND RESPODNENT
THE PRINCIPAL MAGISTRATE’S COURT AT KAPSABET ..............……. 3RD RESPONDENT
THE KAPSABET LAND DISPUTES TRIBUNAL ……...............….......…….. 4TH RESPODNENT
(Application for extension of time to file and serve notice of appeal and record of appeal out of time from a Ruling and order of the High Court of Kenya at Kakamega (Mr. Justice G.B.M. Kariuki) dated 5th November, 2004
in
H.C. MISC.CIVIL APPL. NO. 108 OF 2002)
******************
R U L I N G
By this application expressed to be brought under rules 4 and 41 of the Court of Appeal Rules, the applicant, JACKSON SABATIA,seeks extension of time within which to file and serve notice of appeal upon the respondent.
The 1st respondent has appeared through Mr. Aswani, Advocate. The 2nd-4th respondents, though duly served, are absent.
The decision, the subject matter of the intended appeal, was delivered on 5th November, 2004. An appeal against it being Kisumu C.A.No. 194 of 2005 was duly lodged. However, by its ruling made on 16th June, 2006, this Court struck out the said appeal on the ground that the record thereof was served outside the time prescribed by the Rules. The dismissal triggered this Motion which was lodged on 20th June, 2006 – four (4) days after the event.
In my view, the applicant has not been guilty of any laches in trying to resuscitate the intended appeal or in putting in motion a new appeal. It cannot in the circumstances be said to have been guilty of any delay.
Further, I do not discern any prejudice that has been occasioned to the respondents. If any, that may be remedied by the award of costs.
Although Mr. Aswani has forcefully opposed the application on the ground that the intended appeal is frivolous, I would pose:if there were no omissions on the part of the applicant leading to the former appeal being struck out, the same would have been heard and determined one way or the other.
Moreover, the subject matter of the intended appeal being land, the parties should be afforded opportunity to canvass the dispute in the highest court in the land.
I shall exercise my discretion in favour of the applicant and grant the application sought. I extend time within which to file a Notice of Appeal. This shall be filed and served within seven (7) days hereof. A record of appeal, though specifically not sought to be lodged, shall be filed 21 days after service of the Notice of Appeal. I award costs of Shs.7,500/= to the 1st respondent. This must be paid within ten (10) days hereof.
Dated and delivered at Kisumu this 22nd day of November, 2006.
P.K. TUNOI
…………………….
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRAR