[2019] KEELC 700 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as the delay was occasioned by the late supply of the proceedings and ruling despite diligent efforts by the applicant and her advocate. The absence of opposition from the respondents further supported the grant...
Source-derived case information.
- Citation
- [2019] KEELC 700 (KLR)
- Parties
- Applicant: Margaret Mukomuga; Respondent: Samuel Kingirwa Amuru; Respondent: Ciabaimpwi Amuru; Respondent: Kaberia Amuru; Respondent: Land Adjudication Officer Tigania District; Respondent: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 42 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time.
- Legal Topics
- Extension of Time, Leave to Appeal, Appeals Process, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Mukomuga
Applicant
Samuel Kingirwa Amuru
Respondent
Ciabaimpwi Amuru
Respondent
Kaberia Amuru
Respondent
Land Adjudication Officer Tigania District
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the delay in obtaining proceedings and ruling was excusable.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as the delay was occasioned by the late supply of the proceedings and ruling despite diligent efforts by the applicant and her advocate. The absence of opposition from the respondents further supported the grant of the application. The court therefore exercised its discretion to allow the applicant to file the appeal out of time, subject to compliance with specified timelines and payment of costs.
Court Disposition
Application allowed. Leave granted to file appeal out of time.
Orders
- The memorandum of appeal to be filed and served within 14 days, failing which the orders shall lapse.
- Applicant to meet the costs of this application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC MISC. APPLICATION NO. 42 OF 2019
MARGARET MUKOMUGA..................................................................APPLICANT
VERSUS
SAMUEL KINGIRWA AMURU .................................................1ST REPSONDENT
CIABAIMPWI AMURU ..............................................................2ND RESPONDENT
KABERIA AMURU ……………………...........……….……… 3RD RESPONDENT
LAND ADJUDICATION OFFICER TIGANIA DISTRICT....4TH RESPONDENT
HON. ATTORNEY GENERAL.................................................. 5TH RESPONDENT
RULING
1. The application dated 15. 8.2019 was seeking orders that;
(a) The court allows the applicant to file an appeal out of time in respect of the Principal Magistrate Tigania in Tigania PMCC no. 129 of 2013 dated 20th December 2018.
(b) Costs of the application
2. The grounds in support of the application were that;
(i) The applicant’s advocate applied for proceedings and ruling upon delivery but the same was not recorded.
(ii) That after a follow up the proceedings and the ruling were not ready and he made a written application on 25. 2.2019.
(iii) The proceedings and the ruling were also paid for but were released very late.
3. In support of the application the applicant had sworn an affidavit where she averred that the learned trial magistrate had made his ruling on the matter on 20. 12. 2018 and that she had instructed her advocate that if the ruling was not in her favour she would appeal. She also averred that her advocate applied for the proceedings and judgment orally upon the delivery of the ruling and continued checking the same and found out they were not ready by the time of appeal. This prompted the applicant through her advocate to write to court on 25. 2.2019 whereby the said proceedings and judgment were supplied late.
4. I find that service of the documents has not been challenged by 1st – 3rd respondents. The other respondents have not opposed the application.
5. In the circumstances I hereby allow the said application on the following terms:
(i) The memorandum of appeal to be filed and served within 14 days failure to which the orders granted herein shall lapse.
(ii) Applicant is to meet the costs of this application.
(iii) The orders herein to be extracted and placed in the appeal file.
6. This matter is marked as closed
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 27TH NOVEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Ms. Otieno for applicant
Otieno C. holding brief for Nyamu Nyaga for 1st – 3rd respondent
Kieti for 4th & 5th respondents
HON. LUCY. N. MBUGUA
ELC JUDGE