[2022] KEELC 3864 (KLR)
The court found that the applicant's delay of nearly six months in seeking leave to file a notice of appeal out of time was inordinate. The only reason advanced for the delay was financial difficulty in instructing counsel, which the court held was not a satisfactory explanation. The court relied on binding...
Source-derived case information.
- Citation
- [2022] KEELC 3864 (KLR)
- Parties
- Applicant: Habiba Jattan; Respondent: Hassan Galgalo; Respondent: Rukia Golo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 72 of 2019
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed with costs
- Judges
- CK Nzili
- Legal Topics
- Extension of Time, Appeals Out of Time, Eviction Orders, Discretionary Powers, Delay and Prejudice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Habiba Jattan
Applicant
Hassan Galgalo
Respondent
Rukia Golo
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal out of time.
- 2 Whether financial constraints constitute a satisfactory explanation for delay in seeking leave to appeal.
- 3 Whether the delay of nearly six months is inordinate and prejudicial.
Ratio Decidendi
The court found that the applicant's delay of nearly six months in seeking leave to file a notice of appeal out of time was inordinate. The only reason advanced for the delay was financial difficulty in instructing counsel, which the court held was not a satisfactory explanation. The court relied on binding precedent that financial constraints alone do not constitute sufficient cause for extension of time, especially where the applicant could have invoked provisions allowing impecunious parties to proceed without payment of fees. The court concluded that the application lacked merit and dismissed it with costs.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file a notice of appeal out of time is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
Jattan v Galgalo & another (Environment and Land Appeal 72 of 2019) [2022] KEELC 3864 (KLR) (27 July 2022) (Ruling)
Neutral citation: [2022] KEELC 3864 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal 72 of 2019
C K Nzili, J
July 27, 2022
Between
Habiba Jattan
Plaintiff
and
Hassan Galgalo
1st Defendant
Rukia Golo
2nd Defendant
Ruling
1. By an application dated 11. 5.2022, the court is asked to grant leave to the applicant to file a notice of appeal out of time. The grounds are contained in the supporting affidavit sworn by Habiba Jattani Guyo on 11. 5.2022 namely that at the time the judgment was delivered the applicant lacked finances to instruct counsel to file the appeal on time, he is now threatened with an eviction and requires leave to appeal against the harsh orders contained in the judgment.
2. Despite service of the application upon the respondents, no response has been made to this application.
3. The application is made under Sections 1A, 1B, 3A & 79 of the Civil Procedure Act and Order 50 Rule 5 Civil Procedure Rules. The power to extend time by this court is governed by Section 7 of the Appellate Jurisdiction Act Cap (9).
4. In Leo Sila Mutiso vs Rose Wangari Mwangi Court of Appeal No. Nai 255 of 1997 the court held that the decision whether or not to extend time for appealing is essentially discretionary considering the length of the delay, reasons for the delay, chances of the appeal succeeding and the degree of prejudice to the opposite party if the application is allowed.
5. The guiding principles were also reiterated in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others (2014) eKLR that the extension of time is not a matter of right but depends on the case to case basis including the element of public interest.
6. In County Executive of Kisumu vs County Government of Kisumu & 8 others (2017) eKLR the Supreme Court of Kenya held that the whole period of delay should be declared and explained to the satisfaction of the court offered.
7. In this application, the application was filed close to six months after the delivery of judgment. The reasons given for the delay is financial difficulties to instruct counsel to appeal.
8. In Philomena Mwongeli Nicholas vs National Police Service Commission (2021) eKLR the court held a party who is impecunious ought to invoke Rule 115 (1) of Court of Appeal Rules which allows a party who has demonstrated lack of means to pay the required fees to lodge the appeal without payment of the requisite fees.
9. The court was considering the matter as a full bench after a single ruling of Asike -Makandia J.A dated 3. 4.2020 who in a delay of 90 days made a finding that the reason given of financial constraints was not sufficient and that the applicant’s impecuniosity could not enable the court exercise its discretion.
10. Guided by the above principles and binding decisions the delay herein is only inordinate, but also the reason given is not satisfactory.
11. In the premises, I find the application lacking merits. The same is dismissed with costs.Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURTTHIS 27THDAY OF JULY, 2022In presence of:C/A: KananuMbutu for appellantHON. C.K. NZILIELC JUDGE