[2019] KEELC 126 (KLR)
The court found that the delay of 30 days in filing the notice of appeal was not inordinate given the circumstances, as neither the applicant nor his counsel was present when the ruling was delivered and there was no clear evidence that they were notified of the new delivery date. The court also determined that the...
Source-derived case information.
- Citation
- [2019] KEELC 126 (KLR)
- Parties
- Applicant: Richard Mureithi Gichimba; Respondent: Peter Akeng’o Adhola (Suing as the Personal Representative of Leah Atieno Adhola); Respondent: City County of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 135 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Out of Time, Court Jurisdiction, Service of Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Mureithi Gichimba
Applicant
Peter Akeng’o Adhola (Suing as the Personal Representative of Leah Atieno Adhola)
Respondent
City County of Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the court has jurisdiction to grant extension of time to file an appeal out of time.
- 2 Whether the applicant's advocates are properly on record for the purposes of the application.
- 3 Whether the delay in filing the notice of appeal was inordinate or excusable.
Ratio Decidendi
The court found that the delay of 30 days in filing the notice of appeal was not inordinate given the circumstances, as neither the applicant nor his counsel was present when the ruling was delivered and there was no clear evidence that they were notified of the new delivery date. The court also determined that the applicant was not at fault for the delay and that the application was made promptly upon learning of the ruling. Consequently, the court exercised its discretion to allow the application for extension of time, finding it merited under the facts presented.
Court Disposition
application allowed
Orders
- The application dated 29/05/2019 for enlargement of time to file an appeal out of time is allowed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
ELC CASE NO. 135 OF 2010
RICHARD MUREITHI GICHIMBA………….…………APPLICANT
VERSUS
PETER AKENG’O ADHOLA………………..…….1ST RESPONDENT
(Suing as the Personal Representative of LEAH ATIENO ADHOLA
CITY COUNTY OF NAIROBI…....………....……2ND RESPONDENT
RULING
The application dated 29/05/2019 seeks enlargement of time within which to lodge and file an appeal out of time. It was premised on grounds that when the ruling to be appealed against was delivered on 26/03/2019, neither the advocate for the Applicant nor the Applicant were aware and only got hold of the ruling on 22/05/2019, which was 30 days after the time to lodge an appeal had lapsed. It was also based on the ground that no prejudice will be occasioned to the Respondents should the application be allowed. The application was supported by the undated affidavit of Rita K. Kaloki, Advocate for the Applicant, filed on 31/05/2019, which the court has considered. The affidavit was served and responses to it filed.
In a nutshell, the deponent averred that the intended appeal has good chances of success; the application was made without inordinate delay; and that the record clearly shows that the ruling was scheduled to be delivered on 12/03/2019 but the court did not make any communication thus the Applicant and his Advocate were not aware that the ruling was to be delivered on 26/03/2019. She annexed a draft Notice of Appeal.
Mr. Owino Opiyo, counsel for the 1st Respondent swore a replying affidavit on 15/05/2019 in opposition to the application. He averred that the Applicant’s advocates are not properly on record because they had not sought leave before recording a consent with the previous advocates. He added that this court lacks jurisdiction to extend time for filing an appeal since under Rule 4 of the Court of Appeal Rules, only the Court of Appeal has exclusive jurisdiction to grant the orders sought. He added that when the matter came up for ruling on 12th March 2019, the Applicant’s counsel was present and the ruling was deferred to 26th March 2019 in the presence of all parties and that no convincing basis had been laid to warrant an extension of time.
The court has considered the application and the response. Looking at the totality of the facts in this case, the court is unable to agree with the Respondent that the Applicant is not deserving of the orders sought. The application was brought 30 days out of the time within which the Notice of Appeal should have been lodged. This can hardly be said to be inordinate under the circumstances.
The court record shows that that neither counsel for the Applicant nor the Applicant was present when the ruling was delivered and it cannot be said that it was not due to their fault. The ruling was slated for 12/03/2019 and it is not clear from the court record whether the Applicant was duly notified that the ruling would instead be delivered on 26/03/2019.
The application dated 29/05/2019 is merited and is therefore allowed.
Dated and delivered at Nairobi this 13th day of December 2019
K.BOR
JUDGE
In the presence of:-
Mr. W. Kabugu holding brief for A. Opiyo for the Plaintiff/1st Respondent
Mr. K. Munyori holding brief for Ms. K. Ilia for the 2nd Defendant/Applicant
Mr. V. Owuor - Court Assistant
No appearance for the 1st Defendant