[1997] KECA 160 (KLR)
The court exercised its discretion to grant the applicant an extension of time to file the notice and record of appeal out of time, considering her age, illiteracy, and the difficulties encountered in preparing the documents due to the complexity and possible interference in the court registry. The court found the...
Source-derived case information.
- Citation
- [1997] KECA 160 (KLR)
- Parties
- Applicant: Margaret Apiyo; Respondent: Jotham Chemwa Matayo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 257 of 1996
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal as Pauper
- Outcome
- Application allowed. Extension of time granted. Leave to appeal as pauper granted.
- Legal Topics
- Extension of Time, Pauper Appeals, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Apiyo
Applicant
Jotham Chemwa Matayo
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal as Pauper
Legal Issues
- 1 Whether the applicant should be granted extension of time to file a notice and record of appeal out of time.
- 2 Whether the applicant should be permitted to appeal as a pauper given her circumstances.
Ratio Decidendi
The court exercised its discretion to grant the applicant an extension of time to file the notice and record of appeal out of time, considering her age, illiteracy, and the difficulties encountered in preparing the documents due to the complexity and possible interference in the court registry. The court found the six-month delay not inordinate in the context of a land dispute and determined that justice required allowing the applicant to proceed. Additionally, the applicant was permitted to appeal as a pauper, and the court relaxed the requirement for the conventional form of the record of appeal, recognizing her inability to meet standard procedural demands due to poverty.
Court Disposition
Application allowed. Extension of time granted. Leave to appeal as pauper granted.
Orders
- Leave is granted to the applicant to file her Notice of Appeal out of time and within 14 days.
- Notice of Appeal to be served on the respondent(s) within the same period.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 257 OF 1996
BETWEEN
MARGARET APIYO .................................................. APPLICANT
AND
JOTHAM CHEMWA MATAYO ................................. RESPONDENT
(Application for extension of time to file notice of appeal and record of appeal out of time as a pauper in an intended appeal from a judgment of the High Court of Kenya at Kakamega (Tanui) dated 13th December, 1995 in H.C.C.A. NO. 33 OF 1994) ********************
R U L I N G
The applicant must be congratulated for having gallantly fought great battles single-handedly to regain her land. The delay involved herein is about six months, which in my view, is not too inordinate where land dispute is the subject matter. Moreover, the files in respect of the suit are many and the exhibits scattered, probably deliberately, as one of the parties to the suit worked in the Court Registry at Kakamega. All these go to a great length in explaining the difficulty in the preparation of the documents.
True, ignorance of the law is no excuse but the particular circumstances of this case do militate my discretion in favour of the applicant. She is old and illiterate. She is aggrieved.
The respondent is smart and educated. Fraud is alleged. Blame for tardiness is placed squarely at our door. Where will the scale of justice tilt towards? I grant her extension of time. Leave is granted to her to file her Notice of Appeal out of time and within 14 days hereof. It shall be served on the respondent(s) within the same period. The record of appeal shall be lodged in Court within 60 days thereafter. Costs of this application to be in the intended appeal.
Dated and delivered at Kisumu this 13th day of March, 1997.
P. K. TUNOI
...............
JUDGE OF APPEAL
FURTHER ORDER
I make a further order, the applicant is permitted to appeal as a poor person and for this reason the record of appeal need not be in the conventional form.
Dated and delivered at Kisumu this 13th day of March, 1997.
P. K. TUNOI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR