[2023] KEELC 18865 (KLR)

[2023] KEELC 18865 (KLR)

The court held that the applicant's request for leave to appeal was misconceived, as the right of appeal from the subordinate court was automatic and did not require leave. The applicant failed to seek enlargement of time for filing the appeal and did not provide any explanation or sufficient cause for the delay in filing the appeal beyond the statutory 30-day period. Without such explanation, the court had no basis to consider extending time. Consequently, the application was found to be devoid of merit and constituted an abuse of the court process. The dependent prayers for deeming the draft appeal as filed and for stay of execution also failed as a result.

Citation
[2023] KEELC 18865 (KLR)
Parties
Applicant: Miriam Nkatha Maroo; Respondent: Alphonso Kimaru Gituto
Court
Environment and Land Court
Court Station
Environment and Land Court at Kerugoya
Jurisdiction
Kenya
Judgment Date
18 July 2023
Case Number
Miscellaneous Case E014 of 2023
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution
Outcome
application dismissed
Judges
JM Mutungi
Legal Topics
Leave to Appeal Out of Time, Enlargement of Time, Stay of Execution, Appeals From Subordinate Courts
Source Language
English
Civil Procedure Land and Property Leave to Appeal Out of Time Enlargement of Time Stay of Execution Appeals From Subordinate Courts

Case Brief

Summary, issues, holding and outcome

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Parties

Miriam Nkatha Maroo

Applicant

Alphonso Kimaru Gituto

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Leave to Appeal and Stay of Execution

Legal Issues

  1. 1 Whether leave to appeal against the judgment of the subordinate court is required in this case.
  2. 2 Whether the applicant has provided sufficient cause for delay in filing the appeal out of time.
  3. 3 Whether the court should grant stay of execution of the judgment and decree pending appeal.

Ratio Decidendi

The court held that the applicant's request for leave to appeal was misconceived, as the right of appeal from the subordinate court was automatic and did not require leave. The applicant failed to seek enlargement of time for filing the appeal and did not provide any explanation or sufficient cause for the delay in filing the appeal beyond the statutory 30-day period. Without such explanation, the court had no basis to consider extending time. Consequently, the application was found to be devoid of merit and constituted an abuse of the court process. The dependent prayers for deeming the draft appeal as filed and for stay of execution also failed as a result.

Court Disposition

application dismissed

Orders

  • The Notice of Motion application dated 11/5/2023 is dismissed for lack of merit.
  • Each party shall bear their own costs of the application.