[2024] KEELC 500 (KLR)
The court found that the applicant had not demonstrated sufficient cause to warrant the grant of leave to appeal out of time. The applicant's explanation for the delay, namely the illness of his advocate on the day of judgment, was not adequate, especially given the prolonged period of inaction and the existence of...
Source-derived case information.
- Citation
- [2024] KEELC 500 (KLR)
- Parties
- Applicant: Alfred Omundi Mokobi; Respondent: Mongina Ondora; Respondent: Nyaberi Ondora; Respondent: Machiewa Ondora; Respondent: Magika Ondora
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E011 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- JM Kamau
- Legal Topics
- Leave to Appeal Out of Time, Dismissal for Non Attendance, Want of Prosecution, Review of Lower Court Orders
- 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
Alfred Omundi Mokobi
Applicant
Mongina Ondora
Respondent
Nyaberi Ondora
Respondent
Machiewa Ondora
Respondent
Magika Ondora
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time from the ruling of the lower court.
- 2 Whether the applicant has provided sufficient grounds for the delay in filing the appeal.
- 3 Whether the existence of a pending application for review in the lower court precludes the present application.
Ratio Decidendi
The court found that the applicant had not demonstrated sufficient cause to warrant the grant of leave to appeal out of time. The applicant's explanation for the delay, namely the illness of his advocate on the day of judgment, was not adequate, especially given the prolonged period of inaction and the existence of a pending application for review in the lower court. The court emphasized that the applicant should await the determination of the review application before seeking leave to appeal. Furthermore, the absence of a draft memorandum of appeal suggested that there was no clear intention to pursue an appeal. Consequently, the application was disallowed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for leave to file an appeal out of time is disallowed.
- The applicant shall pay costs to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
Mokobi v Ondora & 3 others (Environment and Land Miscellaneous Application E011 of 2023) [2024] KEELC 500 (KLR) (31 January 2024) (Ruling)
Neutral citation: [2024] KEELC 500 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment and Land Miscellaneous Application E011 of 2023
JM Kamau, J
January 31, 2024
Between
Alfred Omundi Mokobi
Applicant
and
Mongina Ondora
1st Respondent
Nyaberi Ondora
2nd Respondent
Machiewa Ondora
3rd Respondent
Magika Ondora
4th Respondent
Ruling
1. Before me is a Motion dated 30/11/2023 for orders that the Applicant be granted leave to file an Appeal out of time from the Ruling of the Honourable C. Ombija, SRM Keroka in Keroka Principal Magistrate’s Court Civil Case No. 42 of 2019. The Ruling is dated 20/9/2023. The Applicant has given his ground of the Application as that the day the Judgment was delivered, his Advocate Mr. S. M. Sagwe was sick. The case was dismissed with costs for non-attendance on the part of both Counsel.
2. The Respondents through their Advocate, Cleveland M. Mwebi filed a Replying Affidavit sworn on 10/1/2024 opposing the Application on the ground that the suit was not only dismissed for non-attendance but also for want of prosecution. This was on 27/10/2021.
3. He went on to say that between 13/11/2019 and 27/10/2021, a period of about 2 years the Applicant had not taken any steps to prosecute the suit and that a similar Application for setting aside the Lower Court orders was filed on 9/6/2023 which was similarly dismissed. Another one was filed by the Applicant in on 1/11/2023. The same is for Review of the Lower Court’s orders. It is yet to be heard. This being the case the Applicant must decide what he wants. He must wait for the Application dated 1/11/2023 in the Lower Court to be heard and determined before coming to this Court. Secondly, there is no draft Memorandum of Appeal to at least show whether there is any intended appeal at all.Accordingly, this Application is disallowed with costs.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 31ST DAY OF JANUARY 2024. MUGO KAMAUJUDGEIn the presence of*:C/A: BrendaMr. Sagwe for the ApplicantNo appearance for the Respondents