[2024] KEELC 711 (KLR)
The court found that the appellant provided a satisfactory explanation for the delay, namely the lower court's failure to provide typed and certified proceedings in time. While the respondent attributed the delay to the appellant's failure to extract and serve the court order, the court determined that the interests...
Source-derived case information.
- Citation
- [2024] KEELC 711 (KLR)
- Parties
- Appellant: Ma Ni Utheri; Respondent: Pram Company Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Ruiru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 33 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Reinstatement of Appeal and Enlargement of Time
- Outcome
- Application allowed; appeal reinstated subject to payment of costs.
- Judges
- BM Eboso
- Legal Topics
- Reinstatement of Appeal, Enlargement of Time, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ma Ni Utheri
Appellant
Pram Company Limited
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Reinstatement of Appeal and Enlargement of Time
Legal Issues
- 1 Whether the appellant has satisfied the criteria for reinstatement of an appeal dismissed for non-compliance.
- 2 Whether the appellant is entitled to enlargement of time for filing the record of appeal and admission of a record filed out of time.
Ratio Decidendi
The court found that the appellant provided a satisfactory explanation for the delay, namely the lower court's failure to provide typed and certified proceedings in time. While the respondent attributed the delay to the appellant's failure to extract and serve the court order, the court determined that the interests of justice would be best served by reinstating the appeal. However, as a consequence for the procedural lapse, the appellant was ordered to pay throw-away costs to the respondent. The court exercised its discretion in favour of the appellant, allowing the application for reinstatement, enlargement of time, and admission of the late record of appeal, subject to payment of costs...
Court Disposition
Application allowed; appeal reinstated subject to payment of costs.
Orders
- The application dated 5/10/2022 is allowed in terms of prayers 2, 3 and 4.
- The appellant shall pay the respondent costs of the application assessed at Kshs 20,000 within 30 days.
Full Case Text
Judgment text and source record
23 paragraphs
Ma ni Utheri v Pram Company Limited (Environment and Land Appeal 33 of 2021) [2024] KEELC 711 (KLR) (14 February 2024) (Ruling)
Neutral citation: [2024] KEELC 711 (KLR)
Republic of Kenya
In the Environment and Land Court at Ruiru
Environment and Land Appeal 33 of 2021
BM Eboso, J
February 14, 2024
Between
Ma Ni Utheri
Appellant
and
Pram Company Limited
Respondent
Ruling
1. I have considered the application dated 5/10/2022 by the appellant. It seeks an order reinstating this appeal. It also seeks an order enlarging the time for filing the record of appeal. It also seeks an order admitting the record of appeal that was filed out of time.
2. The explanation tendered by the appellant is that there was delay in the procurement of typed and certified proceedings from the lower court. The appellant attributes the delay to the lower court.
3. The appellant opposes the application on the principal ground that the appellant has been indolent, adding that the appellant failed to extract and serve the order of this court on the Thika Chief Magistrate Court.
4. I have considered the application, the response to the application, and the parties respective submissions. I have also considered the relevant jurisprudence on the key issue in the application. The single question to be answered in this application is whether the appellant/applicant has satisfied the criteria for reinstatement of a suit or an appeal.
5. The jurisdiction which the court is invited to exercise is a discretionary one. The prevailing jurisprudence on reinstatement of suits or appeals dismissed for non-compliance is that unless there are compelling reasons, no court should lock a litigant out of the seat of justice [see Shah V Mbogo].
6. In the present application, the applicant has explained that the non-compliance which led to the dismissal of the appeal was occasioned by the lower court’s failure to avail typed and certified copies of the proceedings. The respondent blames the appellant for failing to promptly extract and serve the order of this court on the Thika Chief Magistrate Court.
7. Taking the foregoing into account, the court comes to the view that the interest of justice will be served if the appeal is reinstated. For the failure to promptly extract and serve the order of this court on the Chief Magistrate Court, the appellant will pay the respondent throw-away costs of the application assessed at Kshs 20,000/=.
8. In the end, the application dated 5/10/2022 is allowed in terms of prayers 2, 3 and 4. The appellant shall pay the respondent costs of the application assessed at Kshs 20,0000 within 30 days. In default, the order reinstating the appeal shall stand vacated and the appeal shall stand dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 14TH DAY OF FEBRUARY 2024. B M EBOSOJUDGEIn the presence of: -Mr Mathenge for the AppellantMs Kamande for the RespondentCourt Assistant: Hinga