[2013] KEHC 5815 (KLR)
The court found that the applicant's failure to cite the correct legal provisions was a defect of form, not substance, and was curable under Article 159 of the Constitution. The court held that it lacked jurisdiction to review the orders of the trial court, dismissing that prayer. On the issue of stay, the court...
Source-derived case information.
- Citation
- [2013] KEHC 5815 (KLR)
- Parties
- Applicant: Joseph Wafula; Respondent: Seme Sunguti; Respondent: Municipal Council of Bungoma
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 104 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay, Review, and Leave to Appeal Out of Time
- Outcome
- Application partly allowed.
- Legal Topics
- Extension of Time, Leave to Appeal, Review of Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wafula
Applicant
Seme Sunguti
Respondent
Municipal Council of Bungoma
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay, Review, and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal out of time.
- 2 Whether the application is incompetent for citing non-existent orders.
- 3 Whether this court has jurisdiction to review orders of the trial court.
Ratio Decidendi
The court found that the applicant's failure to cite the correct legal provisions was a defect of form, not substance, and was curable under Article 159 of the Constitution. The court held that it lacked jurisdiction to review the orders of the trial court, dismissing that prayer. On the issue of stay, the court determined that Order 22 Rule 22 does not require a party to first apply for stay before the lower court, and thus the application for stay was properly before the High Court. Although the applicant did not provide reasons for the delay or a draft memorandum of appeal, the court exercised its discretion to grant leave to appeal out of time in the interest of justice, noting the...
Court Disposition
Application partly allowed.
Orders
- Leave to appeal out of time is granted to the applicant.
- Prayer for review is dismissed for want of jurisdiction.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC APPLICATION NO. 104 OF 2012
JOSEPH WAFULA ….................................................................. APPLICANT
VERSUS
SEME SUNGUTI..................................................................1ST RESPONDENT
MUNICIPAL COUNCIL OF BUNGOMA …....................... 2ND RESPONDENT
RULING
The motion dated 23rd October 2012 is brought under 75,78 and 79 G of the Rules and Order 44 Rule 3 of the Civil Procedure Act and all the other enabling statutes seeking six prayers summarized as stay, review and or leave to appeal out of time.
There is a consent recorded between the applicant and the 2nd respondent on 26th April 2013 granting the applicant leave to appeal out of time. This court now is tasked to determine the application as between applicant and 1st respondent.
The 1st respondent has opposed the application mainly on three grounds as captured in their submissions first, the application is incompetent as it is brought under non-existent orders 75, 78 and 79G of the Civil Procedure Rules. Secondly that the application for review ought to have been brought before the court which heard the matter and finally that no application for stay was made before the lower court as required under Order 22 Rule 22.
In determining the application for extension of time, what needs to be considered is the length and reason for delay, the chances of success of the appeal and the prejudice to be occasioned to the respondent. The 1st respondent while opposing the application has not told this court what prejudice he will suffer if the application is allowed.
In terms of his argument on incompetent, I find it to be on want of form and not substance. The applicant instead of quoting section used the words order 75, 78, and 79G.
This omission in my view is curable under article 159 of the Constitution and order.................... rule.................... of the Civil Procedure Rules.
In answer to prayer 3 of the application, I agree with the 1st respondent that this court lacks power to review the orders of the trial court as provided under Order 45. The prayer is dismissed.
On the issue of stay, Order 22 Rule 22 does not limit a party to apply for stay first before the court that issued the decree before moving to a higher court. It provides “…..................... or to any court having appellate jurisdiction in respect of the decree or execution thereof”.The application for stay is therefore properly before this court.
I also agree with the 1st respondent that the applicant has not told this court the reason why he delayed in not filing his appeal within time. However, because he sought this in prayer 4 of his application, the court will not close the door on him. The order to be appealed against is dated 29. 5.2012 attached. This court is not happy in the casual manner in which the applicant has presented this application. There is no annexed draft memo of appeal for the court to peruse if it has chances of success.
The court thus grants the applicant leave to appeal out of time for the ends of justice to be met given this is a land dispute.
The costs of the application is awarded to the 1st respondent.
RULING DATED, SIGNED, READand delivered in open court this 3rd day of June 2013.
A. OMOLLO
JUDGE.