[2001] KECA 182 (KLR)
The court found that the applicant had provided a satisfactory and reasonable explanation for the delay in filing the notice and record of appeal, namely the unavailability of the original file in the home registry and the time required for its transmission. The court noted that there was no inordinate delay and...
Source-derived case information.
- Citation
- [2001] KECA 182 (KLR)
- Parties
- Applicant: Joseck Wakoli Libusi; Respondent: Jackson Wasilwa Libusi; Respondent: Justus Wanga Libusi; Respondent: Wycliffe Khisa Libusi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 256 of ??
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseck Wakoli Libusi
Applicant
Jackson Wasilwa Libusi
Respondent
Justus Wanga Libusi
Respondent
Wycliffe Khisa Libusi
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided a satisfactory explanation for the delay in filing the notice and record of appeal.
- 2 Whether the interests of justice warrant the extension of time sought by the applicant.
Ratio Decidendi
The court found that the applicant had provided a satisfactory and reasonable explanation for the delay in filing the notice and record of appeal, namely the unavailability of the original file in the home registry and the time required for its transmission. The court noted that there was no inordinate delay and that the respondents did not oppose the application on the ground of delay or laxity. Given that the dispute involved family land and was protracted, the court held that the interests of justice required that the applicant be given an opportunity to have the matter resolved on its merits. Accordingly, the court exercised its discretion in favour of the applicant and granted the...
Court Disposition
application allowed
Orders
- Time for filing the Notice of Appeal is extended by 7 days from the date of the ruling.
- Time for filing the record of appeal is extended by 21 days from the date of filing the Notice of Appeal.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CORAM: TUNOI, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 256 OF 2000 BETWEEN
JOSECK WAKOLI LIBUSI ..................................APPLICANT AND JACKSON WASILWA LIBUSI) JUSTUS WANGA LIBUSI ) .............................RESPONDENTS WYCLIFFE KHISA LIBUSI )
(An application for extension of time to lodge and serve the notice of appeal and record of appeal out of time from the judgment and decree of the High Court of Kenya at Bungoma (Mbito J.) dated 2nd October, 1998 in H.C.C. SUITS NO.81 (OS) & 85 OF 1994 (CONSOLIDATED) ***************************************** R U L I N G
This is an application expressed to be brought under rule 4 of the Court of Appeal Rules for extension of time to file a Notice of Appeal and lodge an appeal.
The genesis of this application is that judgment the subject matter of the intended appeal was delivered on 2nd October, 1998. There then followed Civil Appeal No.300/99. Unfortunately, it was struck out on 16th June, 2000 for being incompetent for failure to incorporate in the record one of the primary documents and exhibits, namely, a copy of the Title to Land Parcel No. Malakisi/N & C Namwela/17.
This application was lodged on 2nd August, 2000. The explanation for the delay of about 45 days has been given as due to the unavailability of the original file in its home registry (Bungoma). Obviously, a number of days were needed to transmit it from Kisumu - Court of Appeal Registry - to Bungoma. The explanation to me is satisfactory and reasonable. There is no inordinate delay, in my view. It is worthy of note that the respondents do not challenge the application on the ground of delay or laxity on the part of the applicant or his counsel.
The dispute involves a family land. It appears protracted. The applicant wishes to have the matter resolved once and for all by the highest court on the land. He should be given the opportunity to do so. The interests of justice, so demand.
I exercise my discretion in favour of the applicant and allow the application as prayed. I extend the time for filing the Notice of Appeal by 7 days from today and for filing the record of appeal by 21 days from the date of filing the Notice of Appeal. The costs of the application shall be in the intended appeal.
Dated and delivered at Kisumu this 22nd day of March, 2001.
P. K. TUNOI JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR