[2021] KEHC 4490 (KLR)
The court found that the leave to appeal out of time was granted after considering that the judgment was delivered on 12th May 2021 and the delay of 13 days in seeking leave was not inordinate. The court held that the applicants would have their day in court and that no prejudice would be suffered by the...
Source-derived case information.
- Citation
- [2021] KEHC 4490 (KLR)
- Parties
- Applicant: Republic; Respondent: Nabil Loo Mohamed; Respondent: Bakari Kila Bakari; Respondent: Stephen Vicker Mangira; Respondent: Lilian Benard Martin
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Case E059 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders Granting Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Leave to Appeal Out of Time, Constitutional Rights, Natural Justice, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Nabil Loo Mohamed
Respondent
Bakari Kila Bakari
Respondent
Stephen Vicker Mangira
Respondent
Lilian Benard Martin
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Orders Granting Leave to Appeal Out of Time
Legal Issues
- 1 Whether the ex parte orders granting leave to appeal out of time were issued in violation of Article 25(c) and 50(1) of the Constitution of Kenya, 2010 and the rules of natural justice.
- 2 Whether the delay in seeking leave to appeal out of time was inordinate and prejudicial to the respondents.
- 3 Whether the ex parte orders should be quashed, nullified, and set aside.
Ratio Decidendi
The court found that the leave to appeal out of time was granted after considering that the judgment was delivered on 12th May 2021 and the delay of 13 days in seeking leave was not inordinate. The court held that the applicants would have their day in court and that no prejudice would be suffered by the respondents. The court further held that the respondents have a constitutional right to appeal against orders for which they feel aggrieved. Consequently, the application to set aside the ex parte orders granting leave to appeal out of time was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 30th June 2021 is dismissed.
- The ex parte orders granting leave to appeal out of time remain in force.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CRIMINAL CASE NO. E059 OF 2021
REPUBLIC.........................................................................APPLICANT
VERSUS
1. NABIL LOO MOHAMED
2. BAKARI KILA BAKARI
3. STEPHEN VICKER MANGIRA
4. LILIAN BENARD MARTIN.................................RESPONDENTS
R U L I N G
1. The 3rd Respondent Stephen Vicker Mangira by an application under Certificate of urgency dated 30th June 2021 brought pursuant to Articles 2(4), 25 (c), 48 and 50(1) of the constitution sought that orders issued on 25/06/2021 granting leave to the prosecution to appeal out of time be stayed pending the hearing and determination of the application herein and that upon hearing the same to be declared to have been given in violation of Article 25(c) and 50(1) of the constitution of Kenya 2010 and in breach of the rules of natural justice and are therefore null & void ab initio.
2. It was sought that the exparte orders given on 25/06/2021 be quashed, nullified and set aside as a matter of right. The application was based on the grounds on the face of the application and supporting affidavit of the 3rd Respondent. The application was opposed by grounds of opposition dated 6th July 2021 and filed on even date.
3. The application was canvassed by way of oral submissions by the Applicants Counsel whereas the Respondents Counsel Ms. Karanja said she will rely on grounds of opposition.
4. The Respondents filed an application dated 21st June 2021 seeking leave to appeal out of time. They sought to appeal against Judgement in CR. Case No. 257 of 2017 at Shanzu which was delivered on 12th May 2021. It was explained that the applicant could not have appealed without all of the lower courts proceedings and that delay was not inordinate as judgment was delivered on 12th May 2021.
5. Having considered the application by the 3rd Respondent this court finds that leave to appeal out of time was granted in consideration that judgment was delivered on 12/5/2021 and a delay of 13 days was not inordinate.
6. The applicants will at the end of the day have their day in court and I do find that no prejudice will be suffered. The Respondents have a constitutional right like any party to appeal against orders for which they feel aggrieved.
Application dated 30th June 2021 is therefore dismissed.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 29TH DAY OF JULY, 2021
HON. LADY JUSTICE A. ONG’INJO
JUDGE
In the presence of:-
Ogwel – Court assistant
Mr. Magolo Advocate for 1st & 2nd & 4th Respondent
Mr. Kinyua Advocate & Mr. Muthuri Advocate for 3rd Respondent
Ms. Karanja for the Applicant
COURT: Copies to be supplied.
HON. LADY JUSTICE A. ONG’INJO
JUDGE