[2002] KECA 144 (KLR)
The court exercised its discretion to grant the extension of time, finding that although the delay was exceptional (over three years), the interests of justice and the nature of the dispute (family land) warranted allowing the application. The court held that technicalities should not be used to defeat substantive...
Source-derived case information.
- Citation
- [2002] KECA 144 (KLR)
- Parties
- Applicant: Mary Shilako Musi; Respondent: Jacob Masinde Wanjala
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 166 of 2002
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Process, Service of Process, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mary Shilako Musi
Applicant
Jacob Masinde Wanjala
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file and serve a notice and record of appeal out of time.
- 2 Whether the delay of over three years in filing the application is justifiable.
Ratio Decidendi
The court exercised its discretion to grant the extension of time, finding that although the delay was exceptional (over three years), the interests of justice and the nature of the dispute (family land) warranted allowing the application. The court held that technicalities should not be used to defeat substantive justice, especially where the applicant may not have been aware of the proceedings and the dispute involves family land rights. The application was therefore allowed, granting the applicant leave to file the appeal out of time, with specific timelines for lodging the notice and record of appeal.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file her appeal out of time.
- The Notice of Appeal shall be lodged within 7 days hereof.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
CORAM: TUNOI, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 166 OF 2002 (KSM.17/02)
BETWEEN
MARY SHILAKO MUSI ..........................................APPLICANT
AND
JACOB MASINDE WANJALA ...............................RESPONDENT
(An application for extension of time to file and serve a notice and record of appeal out of time against the decision of the High Court of Kenya at Kakamega (Mr. Justice Tanui) dated 25th October, 1999 in H.C.MISC. APPLICATION NO. 268 OF 1999) *********************
R U L I N G
The applicant is aggrieved by the orders made on 25th October, 1999. She alleges in her affidavit in support of the application that she was not aware of those orders until June, 2002, when the Police went to arrest her. She lodged this application soon thereafter.
The main contention advanced by the respondent's counsel is that the applicant was duly served with all the pleadings and process of of the matters in the superior Court but she did not act upon them. On the other hand the applicant denies ever being made aware of the proceedings in the superior court. Anyway, the truth or otherwise is not for me now to resolve.
The delay involved in the institution of the application is over three (3) years. Indeed it is exceptional. Should this rather inordinate delay be used to deny the applicant a right to mount an appeal? I do not think so. Land is involved. Morever, many members of the same family took part in awarding the applicant the parcel, the subject matter of the intended appeal. The dispute cannot be burried by an avalanche of technicalities. The dictates of justice weigh heavily in allowing this application.
I will exercising my discretion in favour of the applicant. I grant the motion as prayed. Leave is hereby granted to the applicant to file her appeal out of time. the Notice of Appeal shall be lodged 7 days hereof and the Record of Appeal shall be filed 21 days after the service of the Notice of Appeal. The costs of this application shall be in any eDvaetnetd. and delivered at Kisumu this 28th day of November, 2002.
P. K. TUNOI ...................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR