[2021] KECA 200 (KLR)
The court found that the applicants were not at fault for the delay in filing the appeal, as the notice of dismissal was served upon their advocates after the period for lodging an appeal had already lapsed. The judge verified the applicants' averments from the record and concluded that the circumstances justified...
Source-derived case information.
- Citation
- [2021] KECA 200 (KLR)
- Parties
- Applicant: Joseph Mwangi Mbote; Applicant: Abraham Mukuru Mbote; Respondent: Gladys Wanjeri Mbuthia; Respondent: Beth Wambui Mbuthia; Respondent: Mukuru Mbuthia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 56 of 2019
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- DK Musinga
- Legal Topics
- Extension of Time, Appeal Out of Time, Summary Dismissal, Service of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwangi Mbote
Applicant
Abraham Mukuru Mbote
Applicant
Gladys Wanjeri Mbuthia
Respondent
Beth Wambui Mbuthia
Respondent
Mukuru Mbuthia
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicants should be granted leave to file an appeal out of time against the judgment of the Environment and Land Court.
- 2 Whether the delay in filing the appeal was excusable given the circumstances of service of the dismissal notice.
Ratio Decidendi
The court found that the applicants were not at fault for the delay in filing the appeal, as the notice of dismissal was served upon their advocates after the period for lodging an appeal had already lapsed. The judge verified the applicants' averments from the record and concluded that the circumstances justified the grant of leave to file the appeal out of time. The application for extension of time was therefore allowed, and directions were given for the filing and service of the notice of appeal and the record of appeal within specified timelines.
Court Disposition
application allowed
Orders
- The applicants are granted leave to file and serve the notice of appeal within fourteen (14) days from the date of the ruling.
- The record of appeal shall be filed and served within thirty (30) days from the date of service of the notice of appeal.
Full Case Text
Judgment text and source record
27 paragraphs
Mbote & another v Mbuthia & 2 others (Civil Application 56 of 2019) [2021] KECA 200 (KLR) (5 November 2021) (Ruling)
Neutral citation number: [2021] KECA 200 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Application 56 of 2019
DK Musinga, JA
November 5, 2021
Between
Joseph Mwangi Mbote
1st Applicant
Abraham Mukuru Mbote
2nd Applicant
and
Gladys Wanjeri Mbuthia
1st Respondent
Beth Wambui Mbuthia
2nd Respondent
Mukuru Mbuthia
3rd Respondent
(Being an application for extension of time to file an appeal out of time against the Judgment of the Environment and Land Court at Muranga (Kemei, J.) delivered on 18th March 2019 in E.L.C. Appeal No. 16 of 2018. ))
Ruling
1. The applicants’ notice of motion dated 10th April 2019 and brought under rule 4 of this Court’s Rules seeks leave to file an appeal out of time from the orders of Kemei, J. dated 18th March 2019 in ELC Appeal No. 16 of 2018 at Muranga.
2. The application is premised on the ground that the learned judge summarily dismissed the appeal in the absence of the parties but the applicants were notified of the dismissal well after the period of lodging an appeal had lapsed.
3. In their affidavit in support of the application, the applicants states that the learned judge dismissed the appeal on 13th February 2019 but the notice of dismissal was served upon their advocates on 27th March 2019.
4. The applicants believe that the learned judge erred in law by refusing to admit the appeal to hearing, thus summarily dismissing the same, and believe that the intended appeal has good chances of success.
5. The application is not opposed. I have perused the record of appeal and verified the averments made by the applicants. In the circumstances, the applicants cannot be faulted for the delay in instituting an appeal. Consequently, I allow the application and direct that the notice of appeal be filed and served within fourteen (14) days from the date of delivery of this ruling and the record of appeal be filed and served within thirty (30) days from the date of service of the notice of appeal.
DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2021. D. K. MUSINGA, (P)…………….…………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR