[2022] KECA 1001 (KLR)
The court found that the applicant had adequately explained the delay in filing the notice of appeal, attributing it to internet connectivity issues and the late availability of the ruling. The period of delay was not inordinate, and the respondents would not suffer prejudice that could not be compensated by costs....
Source-derived case information.
- Citation
- [2022] KECA 1001 (KLR)
- Parties
- Applicant: Peter Kahura Kimari; Respondent: Peter Gikura Mburu; Respondent: Ali Hassan; Respondent: Nairobi City Council; Respondent: Chief Land Registrar
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E171 of 2022
- Procedural Posture
- Civil Application / Application for Leave to File Notice of Appeal Out of Time
- Outcome
- application allowed
- Judges
- DK Musinga
- Legal Topics
- Extension of Time, Notice of Appeal, Reinstatement of Suit, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kahura Kimari
Applicant
Peter Gikura Mburu
Respondent
Ali Hassan
Respondent
Nairobi City Council
Respondent
Chief Land Registrar
Respondent
Procedural Posture
Civil Application / Application for Leave to File Notice of Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file a notice of appeal out of time.
- 2 Whether the delay in filing the notice of appeal was inordinate or adequately explained.
- 3 Whether the respondents would suffer prejudice if the application is granted.
Ratio Decidendi
The court found that the applicant had adequately explained the delay in filing the notice of appeal, attributing it to internet connectivity issues and the late availability of the ruling. The period of delay was not inordinate, and the respondents would not suffer prejudice that could not be compensated by costs. The court emphasized that denying the application would unjustly deprive the applicant of the opportunity to be heard on a substantive real estate dispute. Applying the settled principles for extension of time, the court exercised its discretion in favour of the applicant and granted leave to file and serve the notice of appeal within fourteen days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file and serve his notice of appeal within fourteen (14) days from the date of delivery of this ruling.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
30 paragraphs
Kimari v Mburu & 3 others (Civil Application E171 of 2022) [2022] KECA 1001 (KLR) (23 September 2022) (Ruling)
Neutral citation: [2022] KECA 1001 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E171 of 2022
DK Musinga, JA
September 23, 2022
Between
Peter Kahura Kimari
Applicant
and
Peter Gikura Mburu
1st Respondent
Ali Hassan
2nd Respondent
Nairobi City Council
3rd Respondent
Chief Land Registrar
4th Respondent
(Being an application for leave to lodge a Notice of Appeal out of time against the Ruling and Order of the Environment and Land Court at Nairobi (Angote, J.) delivered on 21st April 2022 in E.L.C. Suit No. 130 of 2018. Environment & Land Case 130 of 2018 )
Ruling
1. The applicant’s Notice of Motion dated May 20, 2022 seeks leave to lodge a notice of appeal out of time. The applicant intends to appeal against a ruling delivered on April 21, 2022 by the Environment Court (Angote, J.) in ELC No. 130 of 2018.
2. The applicant, the owner of a property known as L.R.209/7260/84, filed the aforesaid suit against the respondents seeking to enforce his rights over the property.When the matter came up for virtual hearing on November 4, 2021, the applicant was unable to attend, and his advocate sought an adjournment which was not opposed, but the learned judge dismissed the suit for the applicant’s non- attendance. The applicant filed an application for reinstatement of the suit, which was not opposed. On the scheduled date of its delivery, April 21, 2022, internet connectivity at the applicant’s advocate’s chambers was interrupted and was only reinstated towards the end of the session. When the applicant’s advocate enquired from the court about the outcome of the application he was asked to collect the signed Ruling from the court registry on April 25, 2022, but the same was not availed until May 6, 2022 when he realized that the application for reinstatement of the suit had also been dismissed.
3. The applicant believes that his intended appeal has good chances of success and urges the Court to exercise its discretion in his favour so that he can pursue his constitutional right of appeal.
4. The 1st and 3rd respondents did not file anything in opposition to the application. The 2nd respondent filed submissions and grounds of opposition to the application. I must state that under rule 52 of this Court’s Rules a person served with a notice of motion may only file an affidavit in reply and not grounds of opposition. A party who wishes to challenge factual depositions in an applicant’s affidavit can only do so by way of a replying affidavit.
5. Similarly, submissions alone cannot be relied upon to controvert averments in an affidavit. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, this Court held that submissions do not constitute evidence.
6. Strictly speaking, the applicant’s averments in his affidavit in support of the application have not been controverted. That does not, however, imply that the written submissions ought to be disregarded in their entirety. They are useful in canvassing issues of law only; and drawing the Court’s attention to important portions of the trial court’s record that has been annexed to the applicant’s affidavit in support of the application and no more.
7. In my view, the period of delay is not inordinate and has been well explained. The respondent shall not suffer such prejudice as may not be compensated by an award of costs if I grant the orders sought. To the contrary, if the application is dismissed, the applicant will have been locked out of the seat of justice without being afforded an opportunity to be heard on a serious real estate dispute.
8. Having considered the well settled principles for grant of extension of time as set out in a plethora of this Court’s decisions, I am inclined to exercise my discretion, which I hereby do, in favour of the applicant. Consequently, I grant leave to the applicant to file and serve his notice of appeal within fourteen (14) days from the date of delivery of this ruling. The applicant shall bear the costs of the application.
DATED AND DELIVERED AT NAIROBI THIS 23RD DAY OF SEPTEMBER, 2022. D. K. MUSINGA, (P)...............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRARJUDGE OF APPEAL