[2022] KECA 866 (KLR)
The court found that the delay of forty-three days (excluding the Christmas vacation) in filing the Notice of Appeal was not inordinate. The applicant's explanation for the delay, though not always acceptable, was considered sufficient in the circumstances. The court also noted the absence of any indication that the...
Source-derived case information.
- Citation
- [2022] KECA 866 (KLR)
- Parties
- Applicant: Sifrosa Akumu Oburon; Respondent: John Omuse
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application E032 of 2020
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- F Tuiyott
- Legal Topics
- Extension of Time, Notice of Appeal, Appellate Discretion, Delay in Filing, Prejudice to Respondent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sifrosa Akumu Oburon
Applicant
John Omuse
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the Notice of Appeal.
- 2 Whether the delay in filing the Notice of Appeal is inordinate.
- 3 Whether the respondent would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the delay of forty-three days (excluding the Christmas vacation) in filing the Notice of Appeal was not inordinate. The applicant's explanation for the delay, though not always acceptable, was considered sufficient in the circumstances. The court also noted the absence of any indication that the respondent would suffer prejudice if the extension was granted. Applying the principles from Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court exercised its discretion in favour of the applicant and allowed the application for extension of time to file the Notice of Appeal.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file and serve the Notice of Appeal within fourteen (14) days from the date of the ruling.
- The applicant shall institute and serve the appeal within sixty (60) days from the date of the ruling.
Full Case Text
Judgment text and source record
23 paragraphs
Oburon (Being the Adminisratix of the Estate of Obarasa Matiengi) v Omuse (Civil Application E032 of 2020) [2022] KECA 866 (KLR) (22 July 2022) (Ruling)
Neutral citation: [2022] KECA 866 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application E032 of 2020
F Tuiyott, JA
July 22, 2022
Between
Sifrosa Akumu Oburon
Applicant
Being the Adminisratix of the Estate of Obarasa Matiengi
and
John Omuse
Respondent
(Being an application for extension of time limited for the filing of the Applicant’s Notice of Appeal arising from the judgment & decree (A. Omollo, J) on 2nd December, 2021 in Busia Environment & Land Court Case No. 48 of 2019 Environment & Land Case 48 of 2019 )
Ruling
1. Sirifosa Akumu Oburon (the applicant) is aggrieved by the decision of Hon. Omollo, J delivered on 2nd December, 2021 in Environment & Land Court Case No. 48 of 2019 and desirous of appealing against it, ought to have filed a Notice of Appeal by 17th December, 2020 but was late.
2. Now, through an application dated 22nd February, 2022 brought under the provisions of Rule 4 of the Rules of this Court, the applicant seeks leave of the Court to file a Notice of Appeal out of time. The applicant explains that the intended appeal was not filed on time due to a misunderstanding between her and her previous advocates, M/S Calistus & Company Advocates.
3. There is no response to the application.
4. In considering an application of this nature, this Court is enjoined to give heed to the settled principles restated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi – Civil Application No. Nai 251 of 1997;“It is now settled that the decision whether to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this court takes into account in deciding whether to grant an extension of time are, first the length of the delay, secondly the reasons for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly the degree of prejudice to the respondent if the application is granted.”
5. Although the reason given for lateness may on another occasion not be accepted as plausible, I note that the application was brought about forty- three (43) (excluding the Christmas vacation) days after the deadline for filing the Notice of Appeal. This is not an inordinate delay. In addition, the Court is not told that the respondent will suffer any prejudice if time is enlarged.
6. I exercise of my discretion in favour of the application of 22nd February, 2022 and allow it. Costs shall be in the appeal. The applicant to file and a serve Notice of Appeal within fourteen (14) days hereof and thereafter, and within sixty (60) days of today, institute and serve the appeal.
DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF JULY, 2022. F. TUIYOTT.......................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar