[2014] KEHC 2403 (KLR)
The court found that the delay in filing the appeal was not inordinate and had been sufficiently explained by the applicants, who attributed it to delays in obtaining certified copies of proceedings and judgment, as well as their advocates' lack of diligence. The court held that the subject matter—land—is emotive,...
Source-derived case information.
- Citation
- [2014] KEHC 2403 (KLR)
- Parties
- Applicant: Muli Musembi; Applicant: Mrs. Paulina; Respondent: Ruth Katunga Isika
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 148 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed with costs to the respondent. Leave to appeal out of time granted.
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Leave to Appeal, Delay in Filing, Judicial Discretion, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muli Musembi
Applicant
Mrs. Paulina
Applicant
Ruth Katunga Isika
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient cause 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.
- 3 Whether the respondent will suffer prejudice if the application is allowed.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate and had been sufficiently explained by the applicants, who attributed it to delays in obtaining certified copies of proceedings and judgment, as well as their advocates' lack of diligence. The court held that the subject matter—land—is emotive, and that the appeal is arguable. It further determined that any prejudice to the respondent could be compensated by costs. In the interests of justice and to allow the appeal to be heard on its merits, the court exercised its discretion to grant leave to appeal out of time, with costs awarded to the respondent.
Court Disposition
Application allowed with costs to the respondent. Leave to appeal out of time granted.
Orders
- Leave to appeal out of time is granted.
- The appeal to be filed within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO. 148 OF 2011
1. MULI MUSEMBI
2. MRS. PAULINA.........................................APPLICANTS/APPELLANTS
VERSUS
RUTH KATUNGA ISIKA .......................................................RESPONDENT
R U L I N G
1. The application dated 8/6/2011 seeks orders that this Honourable Court be pleased to grant leave to the Appellants to appeal out of time.
2. According to the affidavit in support and a further affidavit sworn by the Applicants, the delay in filing the appeal is blamed on the lower court’s delay in providing the Applicants with the certified copy of the of the typed proceedings and judgment and failure by his then advocates to act diligently and/or give the correct advice.
3. The Respondent in her replying affidavit has opposed the application on the grounds that the delay has not been explained. It is further argued that the decree has been partly satisfied as the costs of the suit were deposited in court and later released to the Respondent’s counsel. That following the hearing of the Notice to Show Cause, the court made orders that the Applicants be evicted from the suit property which orders remain unchallenged and therefore litigation has come to an end.
4. Under Order 50 rule 6, the powers of the court to enlarge time are wide and unfettered. This discretion is however to be exercised judicially. (See, for example, Pothi Walla –vs- Kidogo Basi Housing Co-op Society Ltd & 31 Others 2003 KLR 74. )
5. The subject matter of the suit herein is land which is an emotive issue. The delay herein is not inordinate and has been explained. The appeal is arguable. My view is that no prejudice will be suffered by the Respondent which cannot be compensated by costs. The demands of justice dictate that the application be allowed to allow the appeal to be heard on merits. Consequently, I allow the application with costs to the Respondent. The appeal to be filed within 30 days from date hereof.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 29thday of September 2014.
………………………………………
B. THURANIRA JADEN
JUDGE