[2023] KEELC 17935 (KLR)
The court found that the applicants had established a reasonable basis for the delay in filing the appeal, primarily due to lack of notice regarding the judgment delivery date and confusion surrounding the same. The respondent did not dispute the applicants' account nor demonstrate any prejudice that would result...
Source-derived case information.
- Citation
- [2023] KEELC 17935 (KLR)
- Parties
- Applicant: Selphano Osundwa Omwanda; Applicant: Stella Agnes Atiti; Respondent: Samuel Oturi Okongo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E027 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- Application allowed; time to appeal extended subject to conditions.
- Judges
- DO Ohungo
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Judgment Delivery Notice, Discretionary Powers, Environment and Land Court Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selphano Osundwa Omwanda
Applicant
Stella Agnes Atiti
Applicant
Samuel Oturi Okongo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicants have established sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was reasonable and justified.
- 3 Whether granting the extension would prejudice the respondent.
Ratio Decidendi
The court found that the applicants had established a reasonable basis for the delay in filing the appeal, primarily due to lack of notice regarding the judgment delivery date and confusion surrounding the same. The respondent did not dispute the applicants' account nor demonstrate any prejudice that would result from granting the extension. The court held that the applicants satisfied the requirements for extension of time under section 16A of the Environment and Land Court Act, 2011, and the guiding principles set out by the Supreme Court. Consequently, the court exercised its discretion to extend the time for filing the appeal, subject to the applicants filing and serving the...
Court Disposition
Application allowed; time to appeal extended subject to conditions.
Orders
- Time within which to appeal against the judgment delivered by the Subordinate Court on April 6, 2022 in Kakamega CM ELC number 06 of 2020 is hereby extended.
- The applicants to file and serve the memorandum of appeal within 14 days from the date of delivery of this ruling. In default, notice of motion dated September 6, 2022 shall stand dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Omwanda & another v Okongo (Environment and Land Miscellaneous Application E027 of 2022) [2023] KEELC 17935 (KLR) (13 June 2023) (Ruling)
Neutral citation: [2023] KEELC 17935 (KLR)
Republic of Kenya
In the Environment and Land Court at Kakamega
Environment and Land Miscellaneous Application E027 of 2022
DO Ohungo, J
June 13, 2023
Between
Selphano Osundwa Omwanda
1st Applicant
Stella Agnes Atiti
2nd Applicant
and
Samuel Oturi Okongo
Respondent
Ruling
1. By notice of motion dated September 6, 2022, the applicants seek extension of time within which to appeal against judgment delivered by the subordinate court on April 6, 2022 in Kakamega CM ELC number 06 of 2020. The application is supported by an affidavit sworn by the second appellant. She deposed that the applicants attended court on March 9, 2022 for scheduling of judgment date, but no date was given since the file was not available. That subsequently, no notice of delivery of judgment was given and that they only came to learn on May 6, 2022 that judgment was delivered on April 6, 2022. The applicants stated in the grounds on the face of the application that they filed an application dated May 12, 2022 but later withdrew it.
2. The respondent opposed the application through a replying affidavit in which he deposed that the intended appeal is not meritorious since the applicants did not file a defence and further that the application has been overtaken by events since the judgment is being complied with.
3. The applicants canvassed the application through written submissions while the respondent opted to rely entirely on the replying affidavit. The applicants argued that the application is meritorious and urged the court to allow it.
4. I have considered the application, the affidavits, and the submissions. The principles that guide the court while considering an application for extension of time are that such an order is discretionary, and the applicant has the burden of laying a basis to the satisfaction of the court. The court considers such factors as whether there is a reasonable reason for the delay, whether there will be any prejudice suffered by the respondent if the extension is granted and whether the application has been brought without undue delay. See the decision of the Supreme Court inNicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.
5. In terms of section 16A (1) of the Environment and Land Court Act, 2011, an appeal from the subordinate court to this court is to be filed within 30 days of delivery of the judgment or ruling. Pursuant to section 16A (2) of the Environment and Land Court Act, 2011, the court has jurisdiction to admit an appeal out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing it in time.
6. The judgment sought to be appealed against was delivered on April 6, 2022 while the present application was filed on September 12, 2022. The respondent has not disputed that the applicants filed an application dated May 12, 2022 but later withdrew it. Equally, it is not disputed that there was confusion as to the date of delivery of the judgment.
7. I am persuaded that the applicants have laid a basis to warrant exercise of discretion in their favour. The respondent has not shown that any prejudice will be occasioned to him if the orders sought are granted. I find merit in notice of motion dated September 6, 2022 and I therefore make the following orders:a.Time within which to appeal against the judgment delivered by the Subordinate Court on April 6, 2022 in Kakamega CM ELC number 06 of 2020 is hereby extended.b.The applicants to file and serve the memorandum of appeal within 14 (fourteen) days from the date of delivery of this ruling. In default, notice of motion dated September 6, 2022 shall stand dismissed.c.Costs shall be in the appeal.
DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 13TH DAY OF JUNE 2023. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Mr Nyikuli holding brief for Mr Momanyi for the applicantsMr Odhiambo B.F. for the respondentsCourt Assistant: E. Juma