[2024] KEELC 4565 (KLR)
The court found that while the applicants attributed the five-day delay in filing the appeal to a power outage, they failed to provide evidence of the blackout or demonstrate that they took reasonable alternative steps to file the appeal, such as using other sources of power, cyber cafés, Huduma centers, or seeking...
Source-derived case information.
- Citation
- [2024] KEELC 4565 (KLR)
- Parties
- Applicant: Moses Mugambi; Applicant: Geoffrey Muriuki Manene; Applicant: Jane Kirigo Muriuki; Applicant: The Land Registrar Imenti North District; Applicant: The Attorney General; Respondent: Seberina Alfred Thuginku (Suing as the Legal Representative of the Estate of Thiginki Jacob Mugitra alias Thiginki - Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E017 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed with conditions
- Judges
- CK Nzili
- Legal Topics
- Extension of Time, Appeals Out of Time, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Mugambi
Applicant
Geoffrey Muriuki Manene
Applicant
Jane Kirigo Muriuki
Applicant
The Land Registrar Imenti North District
Applicant
The Attorney General
Applicant
Seberina Alfred Thuginku (Suing as the Legal Representative of the Estate of Thiginki Jacob Mugitra alias Thiginki - Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
- 3 Whether the applicants took reasonable steps to mitigate the effects of the power outage and file the appeal by alternative means.
Ratio Decidendi
The court found that while the applicants attributed the five-day delay in filing the appeal to a power outage, they failed to provide evidence of the blackout or demonstrate that they took reasonable alternative steps to file the appeal, such as using other sources of power, cyber cafés, Huduma centers, or seeking assistance at the court. The court noted that the applicants did not specify when instructions to file the appeal were given, and there was no indication that leave to appeal was sought from the trial court. Despite these shortcomings, the court exercised its discretion in the interest of justice and granted the applicants leave to file the memorandum of appeal within three...
Court Disposition
application allowed with conditions
Orders
- Applicants granted leave to file the memorandum of appeal within 3 days from the date of the ruling.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
Mugambi & 4 others v Thuginku (Suing as the Legal Representative of the Estate of Thiginki Jacob Mugitra alias Thiginki - Deceased) (Environment and Land Miscellaneous Application E017 of 2024) [2024] KEELC 4565 (KLR) (5 June 2024) (Ruling)
Neutral citation: [2024] KEELC 4565 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Miscellaneous Application E017 of 2024
CK Nzili, J
June 5, 2024
Between
Moses Mugambi
1st Applicant
Geoffrey Muriuki Manene
2nd Applicant
Jane Kirigo Muriuki
3rd Applicant
The Land Registrar Imenti North District
4th Applicant
The Attorney General
5th Applicant
and
Seberina Alfred Thuginku (Suing as the Legal Representative of the Estate of Thiginki Jacob Mugitra alias Thiginki - Deceased)
Respondent
Ruling
1. The court is asked to extend the time for the applicants to file an appeal out of time. The reasons are contained on the face of the application dated 7. 5.2024 and supporting affidavits of Geoffrey Muriuki Manene and Kiyuki Betty, advocate, sworn on the even date. The applicant's counsel avers that the ruling sought to be appealed against was delivered on 4. 4.2024, but due to a power outage for three consecutive days, online filing of the memorandum of appeal was not possible by the deadline on 4. 5.2024. The applicants’ term the delay not inordinate, and given that the appeal has merits, it is in the interest of justice to grant the orders sought.
2. Section 79G of the Civil Procedure Act grants the court powers to extend the time to file an appeal out of time where there are good reasons why the applicant was unable to file the appeal within time. In Nicholas Arap salat & others vs IEBC & others (2014) eKLR, the court observed that to extend time was not a right for a party but a discretionary power to be exercised on case to case basis. The parameters include the length of the delay, reasons for the delay, public interest, prejudice to the opposite party, and the interest of justice.
3. The delay in filing the appeal in this application was five days. The reason(s) given is that there was a power outage, presumably in the applicant's advocate offices. The affidavits are sworn by both the 2nd applicant and Miss Kiyuki advocate, who confirms that she was instructed to file the appeal, but towards the deadline date; there was a power outage for three consecutive days; hence, online filing was impossible. There is no indication if the applicants opted for an alternative method to upload the appeal including visiting the court premises to seek assistance.
4. The applicants aver that their proposed appeal has merits and that in the interest of justice, the court should grant the orders sought. The court has looked at the draft memorandum of appeal. The ruling sought to be appealed against was out of inertia on the part of their advocates on record and the applicants not attending court. The application to set aside the exparte judgment and to re-open the defense was also filed after an inordinate delay of three months.
5. In this application, the applicants do not mention when they instructed counsel to file the appeal. It could be that they also lodged the instructions late. Nothing was stopping the applicants from using alternative means to file the appeal. It is not clear why the applicants waited until the last three days only for there to be a blackout. No evidence has been tendered to show that there was a blackout and the area that was experiencing the blackout. There are other sources of power apart from KPLC that the applicants could have used.
6. Similarly, the applicants could have resorted to a cyber café or Huduma center for assistance, if the courthouse was very far away. There is also no evidence that the applicants sought leave to appeal against the ruling from the trial court. The applicants are nevertheless granted leave to file the memorandum of appeal within 3 days from the date hereof. Costs to the respondent.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 5TH DAY OF JUNE, 2024In presence ofC.A KananuMiss Kitheka for Omari for respondentMiss Kimotho for Kiyuki for 1st, 2nd and 3rd appellantHON. C K NZILIJUDGE