[2019] KEELC 1313 (KLR)
The court found that the applicant provided a plausible explanation for the delay in filing the appeal, namely that his previous advocate failed to inform him of the judgment in time. The court noted that the respondent did not demonstrate any prejudice that would result from granting the extension, and that the...
Source-derived case information.
- Citation
- [2019] KEELC 1313 (KLR)
- Parties
- Applicant: Republic; Respondent: District Commissioner, Igembe South District; Applicant: Ibrahim Kiragara Mwambia; Respondent: Joseph Ndungu Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 4 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- 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
Republic
Applicant
District Commissioner, Igembe South District
Respondent
Ibrahim Kiragara Mwambia
Applicant
Joseph Ndungu Njuguna
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for extension of time to file an appeal.
- 2 Whether the delay in filing the appeal was justified.
- 3 Whether granting the extension would prejudice the respondent.
Ratio Decidendi
The court found that the applicant provided a plausible explanation for the delay in filing the appeal, namely that his previous advocate failed to inform him of the judgment in time. The court noted that the respondent did not demonstrate any prejudice that would result from granting the extension, and that the absence of a stay application further minimized potential prejudice. The court exercised its discretion in favor of the applicant, holding that the interests of justice warranted granting the extension of time to appeal.
Court Disposition
application allowed
Orders
- The applicant/interested party is granted extension of time to file an appeal and shall file and serve the memorandum of appeal within seven days of the date hereof, failing which the order of extension shall lapse.
- The applicant/interested party shall bear the costs of this application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MERU
ELC JR APPLICATION NO. 4 OF 2013
REPUBLIC.................................................................................................APPLICANT
VERSUS
DISTRICT COMMISSIONER
IGEMBE SOUTH DISTRICT....................................................1ST RESPONDENT
IBRAHIM KIRAGARA MWAMBIA........INTERESTED PARTY/ APPLICANT
JOSEPH NDUNGU NJUGUNA......................................EX-PARTE APPLICANT
RULING
1. The interested party/applicant filed a Notice of motion dated 19th February 2019 pursuant to provisions of section 7 of the Appellate Jurisdiction Act, Order 51 Rules 1, 3 & 4 of the Civil Procedure Rules, 2010 and Articles 10, 25 (c) and 159 of the Constitution seeking for the extension of time within which to file a notice of appeal out of time and that costs of the application be in the intended appeal.
2. The application is based on the grounds on the face of it and in the supporting affidavit and supplementary affidavits of the applicant. He avers that Judgment was delivered against him but his former advocates did not inform him timeously. The interested party and his family have attached great economic and sentimental value in the suit land on which they have lived and developed.
3. The application was opposed by the Ex-parte Applicant (Joseph Ndungu Njuguna) via his replying affidavit dated 15th March 2019, where he avers that the dispute between the two parties has been litigated upon in various forums and that even an appeal cannot salvage the applicant’s claim. Additionally, the ex-parte applicant avers that this application is an after-thought which is meant to delay his enjoyment of the judgment.
4. The Respondent (The Attorney General) has not opposed the application.
5. I have considered all the arguments raised herein as well as the rival submissions of the parties. I find that the issue for determination is whether to grant an extension of time to file an appeal or not?
6. Generally, a court has discretion to consider an application for extension of time to lodge an appeal, see-Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, Civil Application Nai. 251 of 1997and the case ofFahim Yasin Twaha vs. Timamy Issa Abdalla &2 Others (2015) eKLR.
7. Turning to the matter at hand, I find that the applicant/ interested party has given a plausible explanation as to why he did not lodge an appeal in good time. This was because his previous advocate kept him in the dark. Further, I note that the ex-parte applicant has not demonstrated how he stands to be prejudiced if the application is allowed. After all, the applicant/ interested party has not sought for a stay of the Judgment/Decree herein. The fact that the dispute has been litigated upon in many forums is not a barrier to further litigation in the Court of Appeal.
8. In conclusion, I allow the application in the following terms;
I. The Applicant/Interested party is granted extension of time to file an appeal whereby he shall file and serve the memorandum of appeal within seven days of the date hereof failure to which this order of extension of time shall lapse.
II. The Applicant/Interested party shall bear the costs of this application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 9TH DAY OF OCTOBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Muriithi holding brief for C.P Mbaabu for Interested party
Mwangi holding brief for Gichunge for the exparte applicant
HON. LUCY. N. MBUGUA
ELC JUDGE