[2019] KECA 715 (KLR)
The court found that there was no delay in filing the application for extension of time, as the application was made within the 30-day period allowed after the impugned ruling. The respondent did not oppose the application, and the applicant, acting in person, may not have appreciated the absence of delay....
Source-derived case information.
- Citation
- [2019] KECA 715 (KLR)
- Parties
- Applicant: Samwel Otieno Ololo; Respondent: Lily Kavumbi Charo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2019
- Procedural Posture
- Civil Application / Application for Extension of Time to File Appeal
- Outcome
- Application allowed; extension of time granted.
- Judges
- JO Odek
- Legal Topics
- Extension of Time, Appeal Out of Time, Succession Cause Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Otieno Ololo
Applicant
Lily Kavumbi Charo
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file and serve a fresh notice of appeal and record of appeal out of time.
- 2 Whether there was any delay in filing the application for extension of time.
Ratio Decidendi
The court found that there was no delay in filing the application for extension of time, as the application was made within the 30-day period allowed after the impugned ruling. The respondent did not oppose the application, and the applicant, acting in person, may not have appreciated the absence of delay. Considering these factors, the court exercised its discretion to grant leave and extend the time for the applicant to file and serve a fresh notice of appeal and record of appeal. The orders were made to ensure the applicant's right of appeal is preserved, with costs awarded to the respondent.
Court Disposition
Application allowed; extension of time granted.
Orders
- The applicant shall file and serve a fresh Notice of Appeal within 21 days of the date of this ruling.
- The applicant shall file and serve the Record of Appeal within 60 days of service of the new Notice of Appeal.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OTIENO ODEK, JA. (IN CHAMBERS)
CIVIL APPLICATION NO. 13 OF 2019
BETWEEN
SAMWEL OTIENO OLOLO ................................................ APPLICANT
AND
LILY KAVUMBI CHARO .................................................... RESPONDENT
(Being an application seeking leave of the court to file a fresh appeal out of time, or amendment of memorandum of appeal filed at Siaya High Court, Succession Cause No. 21 of 2018 which was struck out by Hon. R. E. Aburili, J dated 23rd January, 2019
in
P.M’S SIAYA CAUSE NO. 55 OF 2015)
**************************
COURT RULING
Before me is a Notice of Motion dated 19th February, 2019. It is an application for extension of time to file and lodge an intended appeal against the decision of Aburili, J. dated 23rd January, 2019.
I note the respondent has no objection to the extension of time. I further observe the impugned Ruling is dated 23rd January, 2019 and the instant application was filed on 19th February, 2019. The delay is for zero days. There is no delay. The application was filed within time, within the 30 day period allowed. The applicant is in person and hence may not have appreciated there is no delay in this matter.
Taking into account that there has been no delay and considering the respondent has no objection to the application, I hereby grant leave and extend time for the applicant to file and serve the Notice of Appeal and Record of Appeal.
The Applicant shall file and serve a fresh Notice of Appeal within 21 days of today’s date. The applicant shall further file and serve the Record of Appeal within 60 days of service of the new Notice of Appeal.
Today’s costs shall be borne by the applicant. It is so ordered.
Dated at Kisumu this 20th May, 2019.
OTIENO ODEK
....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original
DEPUTY REGISTRAR