[2022] KECA 392 (KLR)
The court found that the applicants failed to annex a copy of the letter requesting certified copies of the judgment and proceedings, nor did they provide evidence of payment for the proceedings. The applicants did not state when they received the documents or show that they were incapable of filing the memorandum...
Source-derived case information.
- Citation
- [2022] KECA 392 (KLR)
- Parties
- Applicant: Joseph Mwangi Ndirangu; Applicant: Elisipha Wangari Ndirangu; Applicant: Mwangi Kariebu; Applicant: Evanson Waweru Gachoya; Respondent: Raphael Murigi Kariuki
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E552 of 2021
- Procedural Posture
- Civil Appeal Application / Ruling on Application for Extension of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- DK Musinga
- Legal Topics
- Extension of Time, Appeal Out of Time, Eviction Proceedings, Service of Notice, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwangi Ndirangu
Applicant
Elisipha Wangari Ndirangu
Applicant
Mwangi Kariebu
Applicant
Evanson Waweru Gachoya
Applicant
Raphael Murigi Kariuki
Respondent
Procedural Posture
Civil Appeal Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicants have provided sufficient grounds for extension of time to file a memorandum of appeal out of time.
- 2 Whether the applicants demonstrated diligence in seeking certified copies of proceedings and judgment.
- 3 Whether the intended appeal has any prospects of success given the applicants' eviction from the disputed land.
Ratio Decidendi
The court found that the applicants failed to annex a copy of the letter requesting certified copies of the judgment and proceedings, nor did they provide evidence of payment for the proceedings. The applicants did not state when they received the documents or show that they were incapable of filing the memorandum of appeal electronically. Furthermore, by the time the application for extension was filed, the applicants had already been lawfully evicted from the disputed land, rendering the intended appeal of doubtful merit. The court concluded that the application lacked merit and dismissed it with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time is dismissed.
- The applicants shall pay costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
Ndirangu & 3 others v Kariuki (Civil Appeal (Application) E552 of 2021) [2022] KECA 392 (KLR) (Environment and Land) (4 March 2022) (Ruling)
Neutral citation number: [2022] KECA 392 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal (Application) E552 of 2021
DK Musinga, JA
March 4, 2022
Between
Joseph Mwangi Ndirangu
1st Applicant
Elisipha Wangari Ndirangu
2nd Applicant
Mwangi Kariebu
3rd Applicant
Evanson Waweru Gachoya
4th Applicant
and
Raphael Murigi Kariuki
Respondent
(An application for extension of time to allow the appellant to file memorandum of appeal out of time against the Judgment of the Environment and Land Court at Murang’a (J. G. Kemei, J.) delivered on 22nd July 2019 in E.L.C Cause No. 312 of 2017)
Ruling
1. The applicants’ Notice of Motion dated 8th August 2021 seeks extension of time to file a memorandum of appeal, following delivery of the judgment in Murang’a ELC No. 312 of 2017 on 14th January 2021. The applicants filed a notice of appeal on 18th January 2021 and applied for certified copies of the proceedings and judgment.
2. The applicants further state that due to restriction of movement imposed by the government as a mitigative measure to curb spread of Covid-19 pandemic, they were unable to travel to Nairobi to file the memorandum of appeal since they are not tech savvy. The applicants believe that their intended appeal has good chances of success and have annexed to their application a draft memorandum of appeal. Lastly, they aver that the respondent shall not be prejudiced if their application is granted.
3. The respondent opposes the application. He states, inter alia, that his advocate informed him that the proceedings and judgment were already typed as at the date of delivery of the impugned judgment; that the notice of appeal had not been served; that he has already executed the trial court’s judgment and the applicants are no longer in possession of the disputed parcel of land; that the eviction was carried out on 19th May 2021 and therefore the application has been overtaken by events.
4. I have considered the application for extension of time; the applicants’ affidavit and the reply thereto. Whereas under rule 4 of this Court’s Rules I have discretion to extend time, such discretion must be exercised judicially. The applicants have not annexed to their affidavit a copy of the letter vide which they sought a certified copy of the judgment and the proceedings and neither have they adduced any evidence of payment for the proceedings.
5. Secondly, the applicants have not stated when they received the documents they had applied for, and neither have they shown that they were incapable of causing the memorandum of appeal to be electronically filed in time. And thirdly, as at the date of filing the application for extension of time, the applicants had lawfully been evicted from the disputed parcels of land. It is therefore doubtful if the intended appeal has any chances of success.
6. For all these reasons, I find this application wanting in merit and dismiss it with costs to the respondent.
DATED AND DELIVERED AT NAIROBI THIS 4THDAY OF MARCH, 2022. D. K. MUSINGA, (P).....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR