[2024] KEELC 5023 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the appeal. Merely blaming the court for the delay due to the magistrate's transfer and not demonstrating any effort to follow up with the court registry did not meet the threshold for exercising the court's...
Source-derived case information.
- Citation
- [2024] KEELC 5023 (KLR)
- Parties
- Plaintiff: Phineus Mutuma; Defendant: National Bank Of Kenya; Defendant: Duncan Watta; Defendant: Jenaro Marko Gikunda; Defendant: Hellen Kanana Mutea
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E001 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed with costs
- Judges
- CK Nzili
- Legal Topics
- Extension of Time, Appeals Out of Time, Judgment Delivery, Delay and Explanation, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phineus Mutuma
Plaintiff
National Bank Of Kenya
Defendant
Duncan Watta
Defendant
Jenaro Marko Gikunda
Defendant
Hellen Kanana Mutea
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the court to exercise its discretion to extend time for filing an appeal.
- 2 Whether the delay in filing the appeal was adequately explained by the applicant.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in filing the appeal. Merely blaming the court for the delay due to the magistrate's transfer and not demonstrating any effort to follow up with the court registry did not meet the threshold for exercising the court's discretion to extend time. The court emphasized that extension of time is not a right but a discretionary remedy, and the applicant must show vigilance and provide evidence of attempts to pursue the matter. In the absence of such evidence, the court declined to grant the extension and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file an appeal is dismissed with costs.
- File closed.
Full Case Text
Judgment text and source record
26 paragraphs
Mutuma v National Bank Of Kenya & 3 others (Environment & Land Miscellaneous Case E001 of 2024) [2024] KEELC 5023 (KLR) (26 June 2024) (Ruling)
Neutral citation: [2024] KEELC 5023 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Miscellaneous Case E001 of 2024
CK Nzili, J
June 26, 2024
Between
Phineus Mutuma
Plaintiff
and
National Bank Of Kenya
1st Defendant
Duncan Watta
2nd Defendant
Jenaro Marko Gikunda
3rd Defendant
Hellen Kanana Mutea
4th Defendant
Ruling
1. Extension of time to file an appeal is a discretionary power bestowed upon a court under section 79 G of the Civil Procedure Act. A party applying must show sufficient reason why the appeal ought to be admitted out of time. In the application dated 30. 1.2024, the applicant has deponed an affidavit sworn by Phineus Mutuma on the even date saying that he was not aware of the delivery date of the judgment until 30. 1.2024, yet it was read on 27. 10. 2023 in absence of the parties.
2. It is averred that the initial judgment date of 28. 9.2024 was changed as the magistrate had been transferred to Meru. He blames the court for the delay and fears losing his land. The draft memorandum of appeal is attached to the applicant.
3. The application is opposed through a replying affidavit of Chrispin Mathiya for a delay of three months, said to be inordinate for lack of a follow-up and an explanation for the delay. The memorandum of appeal is also said to be raising no tangible grounds for appeal. In Nicholas Arap Salat v IEBC and 6 others (2013) eKLR, the court observed that an extension of time is not a right of a party but a discretion by the court to be exercised on a case-to-case basis, where the delay is explained to the satisfaction of the court and in the interest of justice. Other than saying that a magistrate was transferred and laying the blame on the court, the applicant does not state what he did on his part to make a follow-up with the court registry.
4. It is not enough to blame other parties without explaining how vigilant one has been, for a court only helps the vigilant and not the indolent. A single letter showing follow-up would have sufficed to show that between 27. 10. 2023 and 1. 2.2024, the applicant was not in slumber. The explanation given is not satisfactory. I reject the application. The same is dismissed with costs.
5. File closed.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 26TH DAY OF JUNE, 2024HON. C K NZILIJUDGEIn presence ofC.A Kananu/MukamiMiss Gitari for 1st respondent