[2023] KEELC 22597 (KLR)
The court found that the delay by the applicant in seeking leave to file an appeal out of time was inordinately long and not satisfactorily explained. The applicant was aware of the existence of the order as early as February 2023 but waited eight months before moving the court for extension. The court held that...
Source-derived case information.
- Citation
- [2023] KEELC 22597 (KLR)
- Parties
- Applicant: Pauline Bosibori Nyaberi; Respondent: Peter Nyaberi Okiambe; Respondent: Hyline Kerubo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case E004 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Judges
- JM Kamau
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Contempt of Court Orders, Land Parcel Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Bosibori Nyaberi
Applicant
Peter Nyaberi Okiambe
Respondent
Hyline Kerubo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the delay in filing the application for leave to appeal out of time is excusable.
- 3 Whether granting the application would prejudice the respondents.
Ratio Decidendi
The court found that the delay by the applicant in seeking leave to file an appeal out of time was inordinately long and not satisfactorily explained. The applicant was aware of the existence of the order as early as February 2023 but waited eight months before moving the court for extension. The court held that such delay was unacceptable, especially considering that the title to the suit property had already been surrendered and closed, and new owners would be prejudiced by reopening the matter. The court exercised its discretion against the applicant and dismissed the application for extension of time.
Court Disposition
application dismissed
Orders
- The application dated 4/9/2023 for leave to file an appeal out of time is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Nyaberi v Okiambe & another (Miscellaneous Case E004 of 2023) [2023] KEELC 22597 (KLR) (31 October 2023) (Ruling)
Neutral citation: [2023] KEELC 22597 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Miscellaneous Case E004 of 2023
JM Kamau, J
October 31, 2023
Between
Pauline Bosibori Nyaberi
Plaintiff
and
Peter Nyaberi Okiambe
1st Defendant
Hyline Kerubo
2nd Defendant
Ruling
1. By Notice of Motion dated 4/9/2023 the applicant, intending appellant Pauline Bosibori Nyaberi is an aggrieved party. In Keroka Principal Magistrate’s Court MCCC Misc. E013 of 2021 a Ruling was delivered on 24/11/2021 in which she was cited for contempt of court as ordered on 24/11/2021. By the time she got to know of this Ruling /Order time to file an Appeal in respect of the orders given by the court had already lapsed. She now seeks to be granted leave to file an Appeal out of time. Though she has not exhibited the ruling/order she seeks to appeal against, the respondent, through the 1st respondent in a replying affidavit sworn on 26/9/2023, has attached a copy of the said ruling. The orders emanated from an Application dated 28/3/2021 seeking an order that a licensed Surveyor visits Land Parcel number Nyankono settlement scheme/120 for the certification of the beacons on the land.
2. The same was allowed on 24/11/2021. The 1st Respondent retorts that the Orders if granted would greatly prejudice him since he has already subdivided and developed a large portion of the suit land. He therefore opposed this Application.
3. Under order 50 rule 6 of the Civil Procedure Rules Orders to extend time to file an Appeal out of time is at the discretion of the court. The same can be extended even after the time to do an act has already expired. Section 79 G of the Civil procedure Act (cap 21 laws of Kenya) provides that an Appeal from a subordinate court to the High court shall be file within a period of 30 days from the date of the decree or order appealed against provided that an Appeal may be admitted out of time if the Appellant satisfies the court that he had good grounds and sufficient course for not filing the Appeal out of time. The time that has lapsed since the Ruling was delivered on 24/11/2021 is inordinately too long. It is also on record that as early as February 2023, the Applicant knew there was an order in court against her as she has clearly stated in her Application. It then took her another 8 months before moving this court for extension of time. This delay is unacceptable bearing in mind that the Title to the suit property has already been surrendered and closed and the new owners would be disadvantaged due to mistakes that are not theirs. The Application dated 4/9/2023 is consequently dismissed. Since this is a family matter, I make no Orders as to costs.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 31ST DAY OF OCTOBER, 2023MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: - BrendaMr. Anyoka for the AppellantMr. Ondigo for the Respondents