[2017] KEELC 1655 (KLR)
The court found that the applicants had demonstrated that the delay in filing the Notice of Appeal was not due to their fault but was occasioned by the court file being missing, a fact corroborated by the respondent's own counsel. The applicants had prepared and lodged the Notice of Appeal within the prescribed...
Source-derived case information.
- Citation
- [2017] KEELC 1655 (KLR)
- Parties
- Appellant: M'Imanyara Mbwiria; Appellant: Justus Mwirigi Manyara; Appellant: Garrison Mbaabu Manyara; Appellant: Isaack Kimonye Manyara; Respondent: Esther Naito
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 46 ‘A’ of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time for Filing Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Notice of Appeal, Court File Missing, Registry Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Imanyara Mbwiria
Appellant
Justus Mwirigi Manyara
Appellant
Garrison Mbaabu Manyara
Appellant
Isaack Kimonye Manyara
Appellant
Esther Naito
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time for Filing Notice of Appeal
Legal Issues
- 1 Whether the applicants should be granted an extension of time to file and serve a Notice of Appeal out of time.
- 2 Whether the delay in filing the Notice of Appeal was occasioned by circumstances beyond the applicants' control, specifically the missing court file.
Ratio Decidendi
The court found that the applicants had demonstrated that the delay in filing the Notice of Appeal was not due to their fault but was occasioned by the court file being missing, a fact corroborated by the respondent's own counsel. The applicants had prepared and lodged the Notice of Appeal within the prescribed time, but administrative circumstances beyond their control prevented further action. The court exercised its discretion to allow the application, finding that denying the extension would prejudice the applicants and that the interests of justice required the extension to be granted. No order as to costs was made, as the delay was attributable to the court registry and not to...
Court Disposition
application allowed
Orders
- The Notice of Appeal is to be filed and served within 7 days from the date of delivery of this ruling.
- No orders as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
APPEAL NO. 46 ‘A’ OF 2009
M’IMANYARA MBWIRIA………..........1ST APPELLANT/APPLICANT
JUSTUS MWIRIGI MANYARA……....2ND APPELLANT/APPLICANT
GARRISON MBAABU MANYARA…..3RD APPELLANT/APPLICANT
ISAACK KIMONYE MANYARA……....4TH APPELLANT/APPLICANT
VERSUS
ESTHER NAITO ……………………..............................RESPONDENT
R U L I N G
This ruling is in respect of the application of 24. .03. 17 where orders sought are:-
1) That the Honourable Court be pleased to enlarge time within which the applicants may lodge and file a Notice of Appeal and subsequent appeal to the Court of Appeal out of time.
2) That the costs of this application be provided for.
The application is based on the grounds.
1) That judgment in this matter was delivered on 08/12/2014.
2) That the Appellants filed a Notice of Appeal on 19/12/2014.
3) That the Notice of Appeal was received in the registry on 19/12/2014 but could not be forwarded to the Deputy registrar as the Court file was said to be missing.
4) That all efforts by the Appellants to trace the Court file were futile until the matter came up for taxation of the Respondent’s Bill of costs.
5) That the Appellants’ effort to have the Deputy Registrar endorse the Notice of Appeal were summarily rejected.
6) That the Deputy Registrar’s reasons for declining to endorse the Notice of Appeal were informed by a clear mistake on the part of the registrar.
7) That the Appellant have a strong case against the judgment of the court.
8) That the Appellants will be greatly prejudiced unless the order sought herein is granted.
The application is supported by the Affidavit of 2nd Applicant who ( on behalf of the other 3 applicants) states that judgment in this matter was delivered on 08/12/2014 and the applicants gave instructions to their advocate to file a notice indicating their intention to appeal against the decision of the Court on 19/12/2014.
Applicants further aver that upon receipt of the Notice of Appeal in the civil registry of the High Court, the same could not be forwarded to the Deputy Registrar as is the requirement as the Court file was said to be missing until the time the Respondents bill of costs was to be assessed.
Applicants further state that on 09/12/2016 the Deputy Registrar declined to append her signature on the Notice of Appeal when it was presented to her with the mistaken remarks that the same had been filed on 19/12/2016 whereas in reality the same was received in civil registry on 19/12/2014.
Applicants contend that they are eager to proceed on appeal but that they would be greatly prejudiced if they are denied this opportunity.
On 11. 05. 15, directions were given for the application to be canvassed by way of Written Submission.
The basis upon which the application is made is that the Court file was missing and therefore, the applicant could not file their Notice of Appeal on time. The Respondent avers that this contention is not true.
I have perused the Court’s records. I find that even Respondents counsel did write a letter to Deputy Registrar ( filed on 04. 08. 16) whose content are as follows:-
“Note that since the Judgment herein was delivered on 08. 12. 14, the Court file got lost and even upon lodging our bill of costs on 23. 03. 16, the same cannot be filed for lack of Court file..”
Indeed Respondents only filed their bill of costs thereafter on 30. 08. 16. This buttresses the applicant’s averments that the Court filed was missing, and that their Notice of Appeal was ready on 19. 12. 14 but could not be acted upon as the Court file was missing.
I therefore find that the application has merits.
The application is allowed as follows.
1) The Notice of Appeal is to be filed and served within 7 days from date of delivery of this ruling.
2) No orders as to costs as it is the Court registry where file had gone missing.
DELIVERED, SIGNED AND DATED IN OPEN COURT AT MERU THIS 27TH DAY OF SEPTEMBER, 2017 IN THE PRESENCE OF:-
CA: Janet
Kithinji for Respondent present
Miss Nyaga for Applicant
Hon. L. N. MBUGUA
ELC JUDGE