[2019] KEELC 875 (KLR)
The court found that although the applicant did not demonstrate that he had requested for the lower court proceedings and judgment, the preparation of the memorandum of appeal indicated a genuine intention to appeal. The court considered it fair and just to allow the applicant an opportunity to seek redress through...
Source-derived case information.
- Citation
- [2019] KEELC 875 (KLR)
- Parties
- Applicant: Joseph M’Mugambi; Respondent: Isaiah Mbaabu; Respondent: Samson Miriti Mbaabu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 17 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Extension of Time, Appeals Process, Memorandum of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph M’Mugambi
Applicant
Isaiah Mbaabu
Respondent
Samson Miriti Mbaabu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for extension of time to file a memorandum of appeal.
- 2 Whether failure to obtain proceedings and judgment in time constitutes a valid reason for delay.
- 3 Whether the applicant should be granted leave to appeal out of time.
Ratio Decidendi
The court found that although the applicant did not demonstrate that he had requested for the lower court proceedings and judgment, the preparation of the memorandum of appeal indicated a genuine intention to appeal. The court considered it fair and just to allow the applicant an opportunity to seek redress through the appellate process, emphasizing the importance of access to justice. However, the court also noted the applicant's failure to strictly comply with procedural requirements and therefore imposed costs against him. The extension of time was granted on the condition that the memorandum of appeal be filed and served within 14 days, failing which the leave would lapse.
Court Disposition
application allowed with conditions
Orders
- The applicant is granted leave to file and serve the memorandum of appeal within 14 days from the date of the ruling.
- Failure to file and serve within 14 days will result in the lapse of the leave granted.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC MISC. 17 OF 2019
JOSEPH M’MUGAMBI ...............................................................APPLICANT
VERSUS
ISAIAH MBAABU .............................................................1ST RESPONDENT
SAMSON MIRITI MBAABU ......................................... 2ND RESPONDENT
RULING
1. Vide the application dated 29. 3.2019, applicant is seeking orders of extension of time to file a memorandum of appeal. Judgment in Maua CMCC no. 34/12 was apparently delivered on 28. 12. 2018 in favour of the plaintiff/respondent but applicant/defendant was aggrieved by the decision and he desires to appeal.
2. He avers that he was unable to file the memorandum of appeal on time because he did not get copies of the proceedings and judgment from the lower court in good time.
3. Respondent avers that the application is not merited as the applicant did not obtain a certificate of delay and that there are no cogent reasons as to why an appeal was not filed within the stipulated time.
4. I have weighed all the arguments raised herein. I find that applicant has not demonstrated to this court that he had requested for proceedings and judgment in the lower court. Nevertheless, I have taken into account the fact that applicant has now prepared a memorandum of appeal. It is only fair and just that he be given an opportunity to seek redress through the hierarchal systems of the court.
5. In the circumstances I allow the application on the following terms:
6. The memorandum of appeal is to be filed and served within 14 days from today failure to which the leave granted to extend time shall lapse.
7. The applicant is condemned to pay costs of this application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 12TH DAY OF NOVEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Thangicia holding brief for Omari for applicant
Karuti holding brief for M. Kariuki for respondent
Applicant
2nd respondent
HON. LUCY. N. MBUGUA
ELC JUDGE