[2022] KEHC 16648 (KLR)
Although the applicants failed to satisfactorily explain the delay in seeking leave to appeal out of time, the court held that denying them the opportunity to be heard on merit would be contrary to the principles of justice enshrined in Article 159 of the Constitution. The court exercised its discretion in favour of...
Source-derived case information.
- Citation
- [2022] KEHC 16648 (KLR)
- Parties
- Applicant: Joseph Gitonga M’Impwi; Applicant: Joel Gituma M’Arithi; Respondent: Lucy Kamami Ntuarithi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E066 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- TW Cherere
- Legal Topics
- Extension of Time, Leave to Appeal, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gitonga M’Impwi
Applicant
Joel Gituma M’Arithi
Applicant
Lucy Kamami Ntuarithi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient explanation for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time despite unexplained delay.
- 3 Whether denying leave would unjustly deprive the applicants of the right to be heard on merit.
Ratio Decidendi
Although the applicants failed to satisfactorily explain the delay in seeking leave to appeal out of time, the court held that denying them the opportunity to be heard on merit would be contrary to the principles of justice enshrined in Article 159 of the Constitution. The court exercised its discretion in favour of the applicants, emphasizing that the right to be heard should only be denied as a last resort. Consequently, the applicants were granted 45 days from the date of the ruling to file and serve the record of the intended appeal, with costs awarded to the respondent.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- Applicants have 45 days from the date of the ruling to file and serve the record of the intended appeal.
- Costs shall be borne by the applicants.
Full Case Text
Judgment text and source record
23 paragraphs
M’Impwi & another v Ntuarithi (Miscellaneous Application E066 of 2022) [2022] KEHC 16648 (KLR) (21 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16648 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Application E066 of 2022
TW Cherere, J
December 21, 2022
Between
Joseph Gitonga M’Impwi
1st Applicant
Joel Gituma M’Arithi
2nd Applicant
and
Lucy Kamami Ntuarithi
Respondent
Ruling
1. By a ruling dated June 30, 2022, the trial court in Maua Succession Cause No E167 Of 2021 dismissed the Applicants’ protest and ordered that any transfers made to deceased’s estate be cancelled.
2. By a notice of motion dated November 4, 2022, Applicants seek leave to appeal the ruling dated June 30, 2022, out of time on the grounds that the ruling and proceedings were not supplied until October 26, 2022,
3. Respondent opposed the application vide a replying affidavit sworn on December 7, 2022 in which she contends among other issues that the delay on Applicants’ part is inordinate and the application is an afterthought geared towards preventing this litigation from coming to an end.
4. I have considered the application in the light of affidavits on record and annexures thereto. Applicants’ contention that the that the ruling and proceedings were not supplied until October 26, 2022 has not been proved and I therefore find that the delay on the part of the Applicants has not been explained to the satisfaction of the court.
5. The foregoing notwithstanding, it should be the court’s last resort to deny a party a chance to be heard. Judicial authority to do justice to all, vested on this court by Article 159 of the Constitutioncannot be said and be seen to be exercised if the courts were to deny a party a chance to be heard on merit only on the ground that they have approached the court outside the time limited for filing an appeal.
6. In conclusion, I find that a case has been made out for allowing the Applicants to file an appeal out of time and it is therefore hereby ordered:1. Applicants have 45 days from today’s date to file and serve the record of the intended appeal2. Costs shall be borne by Applicants
DELIVERED IN MERU THIS ____ 21st__DAY OFDecember__2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicants - Mr. Nyamu for Mbaabu M’Inoti & Co. AdvocatesFor Respondent - Ms. Masamba for Mithega & Kariuki Advocates