[2020] KEELC 3601 (KLR)
The court found that the applicant provided a sufficient explanation for the delay in filing the appeal, as the proceedings were only made available to his counsel after the expiry of the statutory period. The applicant acted promptly by filing the application for leave within a short period after receiving the...
Source-derived case information.
- Citation
- [2020] KEELC 3601 (KLR)
- Parties
- Applicant: Latif M’Ikiara; Respondent: Erastus Gatobu Muriuki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 65 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Appeals From Subordinate Courts, Requirements for Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Latif M’Ikiara
Applicant
Erastus Gatobu Muriuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause to warrant leave to appeal out of time.
- 2 Whether the delay in filing the appeal was justified under Section 79G of the Civil Procedure Act.
Ratio Decidendi
The court found that the applicant provided a sufficient explanation for the delay in filing the appeal, as the proceedings were only made available to his counsel after the expiry of the statutory period. The applicant acted promptly by filing the application for leave within a short period after receiving the proceedings. The court exercised its discretion under Section 79G of the Civil Procedure Act and determined that the delay was not occasioned by the applicant's own fault. Therefore, the application for leave to appeal out of time was meritorious and granted.
Court Disposition
application allowed
Orders
- The applicant is granted leave to appeal out of time and must file the appeal within fourteen (14) days from the date of the ruling, failing which the leave shall lapse.
- Costs shall be in the intended appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
MISC APPLICATION NO. 65 OF 2019
LATIF M’IKIARA.......................................................APPLICANT
VERSUS
ERASTUS GATOBU MURIUKI............................RESPONDENT
RULING
1. This matter relates to a Notice of Motion dated 9/10/2019 brought pursuant to Section 79G Civil Procedure Act and Order 51 of the Civil Procedure Rules. The applicant seeks leave to file an appeal against the decision in Meru CMCC No. 11 of 2017 and that costs be in the intended appeal.
2. The grounds in support of the application are set out in its body and the supporting affidavit of Latif M’Ikiara sworn on 9/10/2019. He being dissatisfied with the judgment delivered on 28/8/2019 failed to file the appeal in due time for the proceedings only became ready on 1/10/2019 when the same were signed and delivered to counsel on record.
3. The application was opposed vide the replying affidavit of Erastus Gatobu sworn on 28/10/2019. He deponed that the application is an afterthought and lacks merits.He avers that the filing of a memorandum of appeal does not require typed proceedings since the record is usually prepared after the appeal is filed. Thus, the explanation given does not suffice. Besides, the applicant did not annex the draft memorandum of appeal to show the seriousness of his appeal.
4. The issue for determination is whether to grant leave to the applicant to file his appeal out of time .
5. Section 79G of the Civil Procedure Rules stipulates that:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
6. Thus for an applicant to be granted leave to appeal out of time, one must satisfy the court, which has discretionary power, that they had a good and sufficient reason for not doing so in time.
7. Judgment was delivered on 28/8/2019, thus by 30/9/2019 is when the applicant ought to have filed his appeal of which he had not. He stated that his counsel received the proceedings on 1/10/2019 which is past the period stipulated in the law. Within six (6) days or thereabout, the applicant had filed this application seeking leave to appeal out of time. I am of the view that the applicant has provided sufficient explanation and demonstrated that delay was not occasioned as a result of his own doing. Moreover, he did not delay in filing the present application.
8. I therefore find that the application is meritorious and the following orders are hereby issued:
1) The applicant is granted leave to appeal out of time, whereby he is to file his appeal within the next fourteen (14) days from today, failure to which the leave granted shall lapse.
2) Costs shall be in the intended appeal.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 19TH FEBRUARY, 2020
IN THE PRESENCE OF:-
C/A: Kananu
Karanja holding brief for Gikunda Anampiu for respondent
Muthomi K. holding brief for Ayub Anampiu for applicant
HON. LUCY. N. MBUGUA
ELC JUDGE