[2021] KEELC 3511 (KLR)
The court found that the applicant failed to provide any proof of when she learned of the judgment or to annex the alleged text message from her former lawyers. The judgment had been delivered after proper notification to the advocates, with the list of judgments published on official websites and parties informed...
Source-derived case information.
- Citation
- [2021] KEELC 3511 (KLR)
- Parties
- Applicant: Jane Muchiku Kimemia; Respondent: John Mwenja Ngumba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1075 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Notice of Appeal, Delay in Filing, Prejudice to Respondent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Muchiku Kimemia
Applicant
John Mwenja Ngumba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted extension of time to file a notice of appeal.
- 2 Whether the applicant has provided sufficient explanation for the delay in filing the notice of appeal.
- 3 Whether granting the extension would prejudice the respondent.
Ratio Decidendi
The court found that the applicant failed to provide any proof of when she learned of the judgment or to annex the alleged text message from her former lawyers. The judgment had been delivered after proper notification to the advocates, with the list of judgments published on official websites and parties informed of the date and time. The application was filed more than five months after judgment delivery, and the applicant had already accepted part of the monies decreed. Granting the extension would prejudice the respondent. Therefore, the application lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time to file notice of appeal is dismissed.
- The applicant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC NO. 1075 OF 2016
JANE MUCHIKU KIMEMIA.................................................................................PLAINTIFF
=VERSUS=
JOHN MWENJA NGUMBA..............................................................................DEFENDANTS
RULING
1. This is a ruling in respect of a notice of motion dated 7th September 2020 in which the Applicant seeks extension of time within which to file Notice of Appeal. The Applicant contends that she came to learn of the delivery of Judgement on 31st August 2020 when her erstwhile lawyers texted her informing her that Judgement had been delivered on 14th May 2020 .
2. The Applicant contends that the Court did not send any notification of delivery of Judgement. As she intends to prefer an appeal against the Judgement, she prays that the time for filing Notice of Appeal be extended.
3. The Applicant’s application is opposed by the Respondent through replying affidavit sworn on 16th November 2020. The Respondent contends that this application is frivolous and that it is only meant to frustrate the implementation of the Judgement. The Respondent argues that the Applicant has not provided any proof of the text which was allegedly sent to her on 31st August 2020. The Respondent further argues that the judgement was delivered after parties were notified of the date for delivery.
4. I have considered the Applicant’s application as well as the opposition thereto by the Respondent. I have also considered the oral submissions during the hearing of the application. The only issue for determination is whether the Applicant should be granted extension of time to file Notice of Appeal. In applications like this, the Court is obliged to consider the length of delay, the reason for delay and the prejudice which the Respondent will suffer if extension is granted.
5. In the instant case, Judgement was delivered on 14th May 2020. The Judgement was delivered after the court issued notices to the Advocates concerned. The list of judgements to be delivered on 14th May 2021 had been published in the Law Society of Kenya website, and the Law Reform Commission Website. Advocates had been asked to provide their e-mail address and court link for the day’s list of judgements and rulings had been circulated.
6. Whereas the Applicant claims that she was texted by her former lawyers on 31st August 2020, she did not annex the alleged text. It is not even disclosed when her erstwhile Advocates came to learn of the delivery of Judgement. Without any proof as to when the Applicant came to learn of the judgement, I find that no explanation has been given for the delay. This application was filed more than five months from the delivery of judgement. The court in its judgement clearly indicated that judgement had been delivered in the absence of the parties who had been informed of the date and time of delivery of judgement.
7. The Applicant has accepted part of the monies which the court decreed should be payable to her. If the court were to allow the extension as requested, this will cause prejudice to the Respondent. I therefore find no merit in this application which is dismissed with costs to the Respondent.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 25TH DAY OF FEBRUARY 2021.
E.O.OBAGA
JUDGE
In the Virtual presence of:-
Mr Simiyu for Applicant
Mr Onyancha for Respondent
Court Assistant: John
E.O.OBAGA
JUDGE