[2019] KEELC 3224 (KLR)
The court found that the intended appellant's advocate did not have a satisfactory reason for failing to file and serve the record of appeal, as the lower court's file had already been made available at Chuka. However, in the interest of justice and upon the respondents' consent, the court exercised its discretion...
Source-derived case information.
- Citation
- [2019] KEELC 3224 (KLR)
- Parties
- Appellant: M'Mboroki Thuraine; Respondent: M'Ikiao Laikuru; Respondent: Stanely Kiria Mitambo; Respondent: District Land Adjudication Officer Tharaka District; Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 08 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Application for Extension of Time to File Record of Appeal
- Outcome
- Application for extension of time granted with final warning; non-compliance will result in summary dismissal.
- Judges
- FM Njoroge
- Legal Topics
- Extension of Time, Appeal Record Filing, Non Compliance With Court Orders, Land Adjudication
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Mboroki Thuraine
Appellant
M'Ikiao Laikuru
Respondent
Stanely Kiria Mitambo
Respondent
District Land Adjudication Officer Tharaka District
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Extension of Time to File Record of Appeal
Legal Issues
- 1 Whether the intended appellant had a satisfactory reason for failing to file and serve the record of appeal within the time ordered by the court.
- 2 Whether the court should grant an extension of time to file and serve the record of appeal or summarily dismiss the appeal for non-compliance.
Ratio Decidendi
The court found that the intended appellant's advocate did not have a satisfactory reason for failing to file and serve the record of appeal, as the lower court's file had already been made available at Chuka. However, in the interest of justice and upon the respondents' consent, the court exercised its discretion to grant a final seven-day extension for the intended appellant to file and serve the record of appeal. The court made it clear that failure to comply within this period would result in the summary dismissal of the appeal. The decision balanced the need for compliance with court orders against the principle of allowing parties a fair opportunity to be heard, but emphasized that...
Court Disposition
Application for extension of time granted with final warning; non-compliance will result in summary dismissal.
Orders
- The intended appellant is directed to file and exchange his record of appeal and to properly serve it upon the respondents within 7 days, failing which the appeal may be summarily dismissed.
- By consent, parties are to appear in court on 16th June, 2019 for directions regarding compliance with these orders.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CIVIL APPEAL CASE NO. 08 OF 2018
FORMERLY MARIMANTI CIVIL CASE NO. 37 OF 2017
M’MBOROKI THURAINE.............................................................APPELLANT
VERSUS
M’IKIAO LAIKURU............................................................1ST RESPONDENT
STANELY KIRIA MITAMBO............................................2ND RESPONDENT
DISTRICT LAND ADJUDICATION
OFFICER THARAKA DISTRICT...................................3RD RESPONDENT
THE HON. ATTORNEY GENERAL...............................4TH RESPONDENT
RULING
1. On 8th May, 2019, this court had issued the following orders:-
a)The intended appellant to file and serve a record of appeal within 14 days of today to enable the court to admit or refuse to admit the appeal.
b)Intended appellant to serve the orders issued today upon the respondents within 5 days of today.
c) Directions on 28. 5.2019
2. On 28th May, 2019, Mr. Mark Muriithi, holding brief for Mr. Mwanzia, the intended appellant’s advocate told the court that Mr. Mwanzia was trying to access the lower courts at Marimanti and that was given as the excuse why he had not filed and served the apposite record of appeal as ordered by the court on 8th May, 2019. He asked the court to give Mr. Mwanzia 7 days to file and exchange the record of appeal. Mr Kaimba, holding brief for Mr. Murango Mwenda, the respondents’ advocate, told the court that his instructions were to ask the court to summarily dismiss the appeal for disobedience of court orders. However, as Mr. Muriithi had asked the court to indulge Mr. Mwanzia by giving him seven days to file and exchange the record of appeal, he asked the court to give him the requested seven days and to dismiss the intended appeal should he not file and exchange the record of appeal within the stipulated time.
3. It is clear that he Deputy Registrar, Chuka ELC Court, wrote to the parties on 9th April, 2019 and informed them that the lower court’s file had been brought to Chuka. Ipso facto, the lawyer representing the Intended Appellant did not have any satisfactory reason for not filing and exchanging the apposite record of appeal as ordered by the court on 8th May, 2019. However, in view of the request that he be granted seven days to file and exchange the necessary record of appeal, this court will indulge him.
4. The following orders are issued:
a) The intended appellant is directed to file and exchange his record of appeal and to properly serve it upon the respondents within 7 days FAILING which the appeal may be summarily dismissed.
b) By consent, parties are to come to court on 16th June, 2019 for directions regarding compliance with this court’s orders issued today.
Delivered in open Court at Chuka this 28th day of May, 2019 in the presence of:
CA: Ndegwa
Muriithi h/b Mwanzia for the Intended Appellant
Kaimba h/b Murango for the Intended Respondent
P. M. NJOROGE
JUDGE