[2017] KEELC 710 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the notice of appeal, namely, the absence of both the applicant and his counsel at the time of judgment delivery and the lack of direct communication. The court exercised its discretion to grant the extension of time,...
Source-derived case information.
- Citation
- [2017] KEELC 710 (KLR)
- Parties
- Plaintiff: Luke Mungania Inebu; Defendant: Johana M’Itabari
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 230 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application granted
- Legal Topics
- Extension of Time, Notice of Appeal, Judgment Delivery Absence, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luke Mungania Inebu
Plaintiff
Johana M’Itabari
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the court should grant an extension of time to file and serve a notice of appeal against the judgment delivered in the absence of the defendant and his counsel.
- 2 Whether the delay in filing the notice of appeal was justified and excusable.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the notice of appeal, namely, the absence of both the applicant and his counsel at the time of judgment delivery and the lack of direct communication. The court exercised its discretion to grant the extension of time, emphasizing the interest of justice and the absence of deliberate delay. The court deemed it just and fair to allow the applicant an opportunity to appeal, especially as the delay was occasioned by circumstances beyond the applicant's control. The application was granted without the need for an inter partes hearing, given the sufficiency of the grounds and supporting affidavit.
Court Disposition
application granted
Orders
- Prayer 2 of the application is granted: extension of time to give, issue and serve notice of appeal against the judgment is allowed.
- Costs shall be in the intended appeal.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT CHUKA
CHUKA ELC CASE NO 230 OF 2017
FORMERLY MERU ELC CASE NO.74 OF 2012
LUKE MUNGANIA INEBU........................PLAINTIFF
VERSUS
JOHANA M’ITABARI...........................DEFENDANT
RULING
1. This application is dated 30th November, 2017 and seeks orders:
1. That this application be certified urgent and be heard on priority basis.
2. That this honourable court be pleased to grant the applicant extension of time to give, issue and serve notice of appeal against the judgment of this court (Hon. Justice P. M. Njoroge) given at Chuka on 17th October, 2017 in Chuka Environment and land court at Chuka ELC No. 230 of 2017.
3. That the costs of this application be in the intended appeal.
2. The application has the following grounds:
a. That the judgment of the court was read in absence of the defendant and when the counsel handling the case was out of the country.
b. That the defendant has no telephone contact and relied on a neighbour who had left the locality.
c. That the defendant had to be sought physically to discuss the results of the judgment and give instructions and this took time and time to give notice of appeal expired.
d. That as what is involved are technical issues of law and facts it is just and fair and in interest of justice that the defendant is allowed to appeal to the court of appeal by allowing extension of time.
3. The application is supported by the affidavit of the applicant, JOHANA M’ ITABARI, which says:
“I JOHANA M’ITABARI of P. O. Box 3151-60200 MERU make oath and state as follows:
1. That I am the defendant/applicant herein and therefore competent to make and swear this affidavit.
2. That when I instructed Maitai Rimita & Co. Advocates to defend me in this suit I gave them telephone No.0700218715 as my contact.
3. That the owner of the number is my neighbour and witness David M’Luuruma.
4. That unfortunately in September and October 2017 he was out of the locality due to drought to get pasture for his cattle.
5. That when judgment was delivered I did not know the date and even thereafter my advocate could not reach me.
6. That one Maitima sent some people to deliver the message physically and I reported to the advocate’s office on 13th November, 2017 to be told that the judgment was against me.
7. That I was not satisfied with the said judgment and I pray that time to give notice of appeal be extended.
8. That the delay was not deliberate and I pray the court to give me chance.
9. That the contents of this affidavit are true to the best of my knowledge, information and belief.
4. The application was prosecuted by M/s Rimita on 20. 12. 2017. she told the court that she was relying on the grounds of the face of the application and on the applicant’s supporting affidavit.
5. Having considered the pleadings in this application, I am inclined to grant the orders sought, in the interest of justice, even without waiting to hear the application interpartes.
6. In the circumstances, prayer 2 is granted.
7. Costs shall be in the intended appeal.
8. It is so ordered
Delivered in open court at Chuka this 20th day of December, 2017 in the presence of:
CA: Ndegwa
M/s Rimita for the applicant
P. M. NJOROGE
JUDGE.