[2024] KEELC 13725 (KLR)
The court found that the applicants had demonstrated sufficient cause for the delay in filing the appeal. The 1st applicant's illness, evidenced by a medical report showing he was hospitalized for about two months, and the 2nd applicant's involvement in his care, adequately explained why neither could instruct...
Source-derived case information.
- Citation
- [2024] KEELC 13725 (KLR)
- Parties
- Applicant: Ben Bitange Oisera; Applicant: Jacqueline Nyang’arisa Bitange; Respondent: Elijah Nyagami Gai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E025 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- M Sila
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Sufficient Cause, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Bitange Oisera
Applicant
Jacqueline Nyang’arisa Bitange
Applicant
Elijah Nyagami Gai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to File Appeal Out of Time
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the illness of the 1st applicant and the involvement of the 2nd applicant in his care constitute sufficient cause under Section 79G of the Civil Procedure Act.
Ratio Decidendi
The court found that the applicants had demonstrated sufficient cause for the delay in filing the appeal. The 1st applicant's illness, evidenced by a medical report showing he was hospitalized for about two months, and the 2nd applicant's involvement in his care, adequately explained why neither could instruct counsel to file the appeal within the statutory period. The court was satisfied that the delay of approximately one month was not inordinate and exercised its discretion under Section 79G of the Civil Procedure Act to allow the application. The court emphasized that the purpose of the provision is to ensure justice is served where genuine reasons for delay exist, and the applicants'...
Court Disposition
application allowed
Orders
- Applicants are granted leave to file their appeal out of time.
- Applicants to file their appeal within fourteen (14) days from the date of this ruling.
Full Case Text
Judgment text and source record
27 paragraphs
Oisera & another v Gai (Environment and Land Miscellaneous Application E025 of 2024) [2024] KEELC 13725 (KLR) (10 December 2024) (Ruling)
Neutral citation: [2024] KEELC 13725 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment and Land Miscellaneous Application E025 of 2024
M Sila, J
December 10, 2024
Between
Ben Bitange Oisera
1st Applicant
Jacqueline Nyang’arisa Bitange
2nd Applicant
and
Elijah Nyagami Gai
Respondent
(Application to file appeal out of time; Section 79 {{>/akn/ke/act/1924/3 Civil Procedure Act}}; applicants showing that the appeal could not be filed in time owing to health challenges faced by the 1{{^st}} applicant; sufficient cause shown; application allowed)
Ruling
1. Before me is an application dated 24 October 2024 filed by the unsuccessful plaintiffs in the suit Kisii CMCC/ELC No. 214 of 2018. They seek orders to be allowed to file an appeal out of time. Judgment in the matter was delivered on 26 August 2024 and the ordinary time to file appeal, which is 30 days from the date of judgment, has since lapsed. The supporting affidavit is sworn by Ben Bitange Oisera, the 1st applicant. He deposes that at the time the judgment was delivered he was battling health challenges that kept him in and out of hospital and was not able to give instructions to his advocate to file appeal. He has annexed a medical report to support his averment. He believes that they have an arguable appeal with chances of success and he has annexed a draft memorandum of appeal.
2. The respondent has opposed the motion through a replying affidavit. He deposes that if the 1st applicant was unwell, nothing stopped the 2nd applicant from giving instructions to file appeal. He does not believe that the applicants have met the threshold of being allowed leave to file appeal out of time.
3. The applicants presented a supplementary affidavit again sworn by the 1st applicant. I see that it principally canvasses the question raised by the respondent as to why the 2nd applicant could not give instructions to file appeal within time. He deposes that the 2nd applicant is his wife and that she had given him authority in the matter. He adds that she was also engaged in assisting him when he had health challenges.
4. I have given the application due consideration. What I have is an application to file appeal out of time and the applicable law is Section 79G of the Civil Procedure Act, Cap 21, Laws of Kenya, which provides as follows :79G. Time for filing appeals from subordinate courtsEvery appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
5. From the above it will be seen that appeals are to be filed within 30 days of the order appealed from though the time for preparing the copy of the order may be discounted. In our case, the judgment was delivered on 26 August 2024. The applicants were thus supposed to file their appeal by 25 September 2024 as it is not claimed that there was any delay in delivery of the judgment. In the provision to Section 79G an appeal may be admitted out of time if the applicant provides ‘sufficient cause’ for not filing the appeal in time.
6. In our case, the applicants aver that the 1st applicant fell unwell and that is why they could not file their appeal within time. I have seen the medical report annexed and it shows that the 1st applicant was in and out of Aga Khan Hospital Kisumu for about 2 months prior to October 2024. I have taken note of the contention by the respondent that the appeal could as well have been filed by the 2nd applicant but this is well explained in the supplementary affidavit. I am persuaded that the illness of the 1st applicant and the fact that the 2nd applicant was involved in taking care of him is sufficient reason to enable this court exercise its discretion to allow the applicants file appeal out of time. I also observe that the applicants are just about one month or so late, which delay is not inordinate.
7. For the above reasons, I allow this application. I direct the applicants to file their appeal within the next Fourteen (14) Days.
8. I make no orders as to costs as the delay is well explained.
9. Orders accordingly.
DATED AND DELIVERED THIS 10 DAY OF DECEMBER 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISIIDelivered in the presence of:Mr. Ombachi for the applicantsMr. Wafula h/b for Mr. Mulisa for the respondentCourt Assistant – David Ochieng’