[1990] KECA 8 (KLR)
The court found that, although the applicants failed to adequately explain certain periods of delay, the subject matter of the intended appeal involved land held by several persons as tenants in common. Citing established practice and precedent, the court held that, wherever just and reasonably possible, appeals in...
Source-derived case information.
- Citation
- [1990] KECA 8 (KLR)
- Parties
- Applicant: Omari Kipkemei Sing'oei & 5 Others; Respondent: Abigael Jelagat Rotich Hurt
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 179 of 1988
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Record of Appeal
- Outcome
- Application allowed. Extension of time granted.
- Legal Topics
- Extension of Time, Appeals Process, Judicial Discretion, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omari Kipkemei Sing'oei & 5 Others
Applicant
Abigael Jelagat Rotich Hurt
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicants have provided sufficient reasons for the delay in filing and serving the record of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing and serving the record of appeal in a land matter.
Ratio Decidendi
The court found that, although the applicants failed to adequately explain certain periods of delay, the subject matter of the intended appeal involved land held by several persons as tenants in common. Citing established practice and precedent, the court held that, wherever just and reasonably possible, appeals in land matters should be allowed to proceed to final determination. The applicants demonstrated an arguable appeal, and the court exercised its discretion to grant a 7-day extension for filing and serving the record of appeal. Costs of the application were awarded to the respondent.
Court Disposition
Application allowed. Extension of time granted.
Orders
- Time for filing and service of the applicants' record of appeal extended by 7 days from the date of the order.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, J.A. (IN CHAMBERS)
(In the matter of an intended appeal)
CIVIL APPLICATION NO. NAI. 179 OF 1988 BETWEEN
OMARI KIPKEMEI SING'OEI & 5 OTHERS......................APPLICANTS
AND
ABIGAEL JELAGAT ROTICH HURT............................RESPONDENT
(Application for extension of time in an appeal from a j
udgment and decree of the High Court of Kenya at Nairobi
(Sachdeva, J.) dated the 23rd July, 1985
in
H.C.C.C. NO. 3096 OF 1984)
************************
RULING:
In this application, the applicants have sought an order that the time for the filing and service of the applicants' record of appeal be extended by 7 days from the date of making such order by this court. It is supported by the annexed affidavit of Joseph Wandabwa sworn on his own behalf and on behalf of the other applicants.
According to this affidavit, Notice of Appeal was lodged on 2nd August, 1985. Certified copies of the proceedings were supplied to the applicants on 15th April, 1987. The deponent was the instructing client to the applicants' counsel. He claims to be hypertensive and that in the months of June, and July, 1987 he suffered acute hypertension. As he and the other applicants live in Kitali, he was unable to travel to Nairobi to instruct their counsel. Towards the end of the year 1987 he learnt that fees for the preparation of the record of appeal and for filing the appeal had to be paid. Efforts were then made to look for the necessary funds. During the month of March, 1988 these funds were available. Their counsel was duly instructed. Thereafter, due to their counsel's illness between the months of March and August, 1988, the record of appeal was not prepared until sometime in September, 1988. This application was filed on 23rd November, 1988. For the foregoing reasons, the applicants pray for the order set out above.
Counsel for the respondent opposed this application for the insufficiency of the reasons for the delay. He argued that the periods between 15th April, 1987 and the month of March, 1988 and between August and November, 1988 were unexplained. Besides, according to him, the applicants had not demonstrated that they had an arguable appeal.
No doubt, save for the months of June and July, 1987 and the period between the months of March and August, 1988, the applicants' reasons for the delay between 15th April, 1987 and the date of filing this application are insufficient. From exhibit JW - 1 referred to in the applicants' supporting affidavit, the subject matter of the intended appeal is land held by several persons as tenants in common in equal shares.
As was observed by Nyarangi, J.A. in the case of Mangoli Wamalwa Machine v. Nafula Mbingu Mukhwana, Civil Application NO. NAI. 128 of 1987 (KMU 25/87) (unreported):
"The practice of this court is that with regard to land matters, wherever it is just and reasonably possible, an appeal should be filed in order for this court to make a final determination on such land disputes."
A perusal of exhibit JW - 1 and the case of D.T. Dobie & Company (Kenya) Limited v. Joseph Mbaria Muchina and Another,Civil Appeal NO. 37 of 1978 (unreported) indicate that it is just that the applicants should be allowed to file their intended appeal. they have an arguable appeal.
In the exercise of my judicial discretion, I accordingly allow the applicants' application and order that the time for the filing and service of the applicants' record of appeal be extended by 7 days from today's date.
Counsel for the applicants quite rightly conceded that the applicants could not resist the award of costs of this application to the respondent. The same are awarded to the respondent in any event.
Dated and delivered at Nairobi this 6th day of July, 1990.
J.E. GICHERU
..............
JUDGE OF APPEAL