[2015] KEHC 158 (KLR)
The court found that the applicant was not notified of the date of delivery of the ruling, which is contrary to the requirements of Order 20 Rule 1 of the Civil Procedure Act. The absence of such notice infringes upon the right to be heard. The delay in filing the appeal was only 24 days and was not considered...
Source-derived case information.
- Citation
- [2015] KEHC 158 (KLR)
- Parties
- Applicant: Said Suleiman; Respondent: Laeli Kavemba; Respondent: Peter Kavemba; Respondent: Joseph Kavemba
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 138 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to File Appeal
- Outcome
- Application granted. Time for lodging the appeal extended.
- Legal Topics
- Extension of Time, Service of Judgment Notice, Right to Be Heard, Jurisdiction, Appeal Lodging Period
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Suleiman
Applicant
Laeli Kavemba
Respondent
Peter Kavemba
Respondent
Joseph Kavemba
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant was entitled to an extension of time to file an appeal after the lapse of the statutory period.
- 2 Whether failure to notify the applicant of the date of delivery of the ruling justified enlargement of time.
- 3 Whether the delay in filing the appeal was inordinate.
Ratio Decidendi
The court found that the applicant was not notified of the date of delivery of the ruling, which is contrary to the requirements of Order 20 Rule 1 of the Civil Procedure Act. The absence of such notice infringes upon the right to be heard. The delay in filing the appeal was only 24 days and was not considered inordinate. The application was unopposed, and the grounds for extension were accepted. Therefore, the court exercised its discretion to enlarge the time for lodging the appeal, holding that the failure to notify the applicant of the ruling's delivery was sufficient reason to grant the extension.
Court Disposition
Application granted. Time for lodging the appeal extended.
Orders
- Time for lodging the appeal is extended. The appeal must be filed within 14 days from the date of this ruling.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 138 OF 2015
(Being an appeal from the ruling of the Hon.Kimanga (Mr) Resident Magistrate, given on 16th July, 2016, in Chief Magistrate Civil Suit No.1046 of 2014 LAELI KAVEMBA, PETER KAVEMBA AND JOSEPH KAVEMBA VERSUS SAID SULEIMAN)
SAID SULEIMAN..........................................................APPLICANT
VERSUS
1. LAELI KAVEMBA
2. PETER KAVEMBA
3. JOSEPH KAVEMBA................................................DEFENDANTS
RULING
Before me is an application by way of notice of motion dated 2/9/2015 and filed in court on the 9/9/2015.
It seeks orders that the time to file an appeal be extended on grounds that the decision sought to be appealed against was delivered in the absence of the applicant without notice and that the instructions to appeal were received on the 15/8/2015 the day the period of lodging the appeal was due to lapse.
In my view there is scanty material placed before the court. In an application of this nature it was necessary to avail to court; the date the matter was last before court to demonstrate what orders was made and that the date of delivery of the Ruling was indeed never communicated to the applicant. It would also be desirable to exhibit the proceedings, even if ti be the handwritten copies to show that the applicant was not present at the delivery of the ruling. These are matters that a little candour would have availed. To the contrary the grounds in both the application and affidavit in support are very scanty even though the same is unopposed. I have however looked at the entire record including the draft memorandum of appeal and the oral submissions which for the first time state that the applicant was not present on the delivery of the ruling sought to be challenged. If that be true, as it is not contested, then the provision of Civil Procedure Act would be of assistance.
Order 20 Rule 1 Civil Procedure provide:
“in a suit where hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of that notice of motion shall be given to the parties or that advocates.”
To me it is not a luxury hat parties be notified of the date and time set for a determination. It is a cardinal requirement which goes with the right to be heard.
Doing the best can on the scrutiny of the record before me, I take it from Mr.Chekera's submissions that they were not given notice of the ruling to be delivered on the 16/7/2015. That in itself would be contrary to the provision cited above and therefore a reason to enlarge time.
Secondly the grounds of appeal seem to suggest that the matter before the lower court concerned use and/or occupation of land and the question of jurisdiction may just arise on the appeal. That would present an regular appeal.
Thirdly the application was presented some 24 days out of time and I consider the delay not to be inordinate.
Consequently I grant the application, extend the time for lodging the appeal and order that the appeal be filed within 14 days from today.
No order as to costs.
Dated, signed and delivered at Mombasa this 4th day of November 2015.
In the presence of: Mr.Chekera for the Applicant.
No appearance for the Respondent.
P.J.O.OTIENO
JUDGE