[2017] KECA 777 (KLR)
The court found that while there was some explanation for the delay in obtaining proceedings, the applicant failed to provide any evidence or grounds to demonstrate that the intended appeal was arguable or had prospects of success. The absence of a draft memorandum of appeal or the impugned judgment meant the...
Source-derived case information.
- Citation
- [2017] KECA 777 (KLR)
- Parties
- Applicant: Simon Kiprotich; Respondent: James Kiptoo Chemjor
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Application 58 of 2016
- Procedural Posture
- Civil Application / Ruling on Application to Enlarge Time to File and Serve Record of Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- DK Musinga
- Legal Topics
- Extension of Time, Appeals Process, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kiprotich
Applicant
James Kiptoo Chemjor
Respondent
Procedural Posture
Civil Application / Ruling on Application to Enlarge Time to File and Serve Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing and serving the record of appeal out of time.
- 2 Whether the applicant has demonstrated that the intended appeal is arguable and has prospects of success.
- 3 Whether the respondent would suffer prejudice if the application is allowed.
Ratio Decidendi
The court found that while there was some explanation for the delay in obtaining proceedings, the applicant failed to provide any evidence or grounds to demonstrate that the intended appeal was arguable or had prospects of success. The absence of a draft memorandum of appeal or the impugned judgment meant the applicant did not satisfy a key requirement for extension of time. The court held that these deficiencies were fatal to the application, and thus, the discretion to extend time could not be exercised in the applicant's favour.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for extension of time is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT ELDORET
(CORAM: MUSINGA, J.A. (IN CHAMBERS))
CIVIL APPLICATION NO. 58 OF 2016
BETWEEN
SIMON KIPROTICH ….……..…… APPLICANT
AND
JAMES KIPTOO CHEMJOR …. RESPONDENT
(Application to enlarge time within which the applicant can file and serve record of appeal against the judgment delivered by (Ombwayo, J.) dated 9th October, 2015 inEnviroment And Land Court Case No. 19 Of 2015)
********************************************
RULING
1. This is an application for leave to file and serve the record of appeal out of time. It is brought under section 3A of the Appellate Jurisdiction Actand rule 4 of the Courtof Appeal Rules.
2. The judgment sought to be appealed from was delivered by Ombwayo, J. on 9th October, 2015. The applicant neither provided a copy of the said judgment nor the decree that was extracted from the said judgment.
3. In his brief affidavit in support of the application, the applicant stated that after delivery of the judgment his advocates applied for the proceedings but they were not ready for collection until 28th June, 2016. He annexed to his affidavit a certificate of delay that was issued on 8th July, 2016. It certifies that the period from 29th October, 2015 to 28th June, 2016 was required for the preparation of the proceedings.
4. Mr. Chebii, learned counsel for the applicant, told the Court that between 28th June, 2016 when the proceedings were ready for collection and 27th July, 2016 when the application was filed, he was waiting for the applicant to sign the affidavit that was to accompany the application. Counsel added that the respondent would not suffer any prejudice if the application is allowed since he is enjoying use of the land in dispute.
5. The respondent opposed the application. In his replying affidavit, he deposed that there was no evidence as to when the proceedings were paid for; the delay in filing the record of appeal had not been well explained; the applicant had not demonstrated in any way that the intended appeal had good chances of success and therefore the application ought to be disallowed.
6. The principles that guide this Court in dealing with an application of this nature are well settled. The factors to be considered in exercising the court’s discretion include the length of the delay, the reasons for the delay, whether the applicant has an arguable appeal, and the degree of prejudice to the respondent if time is extended. See FAKIR MOHAMED V JOSEPH MUGAMBI & 2 OTHERS [2005] eKLR.
7. The applicant’s advocate wrote a letter dated 14th October, 2015 requesting for certified copies of the proceedings and judgment but the letter was not delivered to the court until 21st October, 2015. There is no evidence that any deposit was paid for the typing of the proceedings.
8. The proceedings were ready for collection on 28th June, 2016. Between that date and 27th July, 2016 when the application was filed there is no satisfactory explanation for the delay. I am however prepared to accept Mr. Chebii’s explanation that he had written to his client to go to his chambers to swear the affidavit in support of the application.
9. The applicant did not, however, make any effort to demonstrate that the intended appeal has any chances of success. Apart from disclosing that the dispute was over a parcel of land, the applicant’s counsel did not provide any other information at all. Neither a copy of the impugned judgment nor a copy of the proposed grounds of appeal was provided to the Court. The applicant has therefore failed to satisfy the court that he has an arguable appeal. This Court has severally held that failure to file a draft memorandum of appeal or to specify the intended grounds of appeal is fatal to an application for leave to file an appeal out of time. See ELDORET WATER AND SANITATION COMPANY LIMITED V WILSON K. TUIGONG [2016] eKLR.
10. Consequently, I am unable to exercise my discretion in favour of the applicant, with the result that the application for extension of time is hereby dismissed with costs to the respondent.
DATED and Delivered at Eldoret this 16th day of February, 2017.
D. K. MUSINGA
……………………...
JUDGE OF APPEAL
I certify that this isa true copy of the original.
DEPUTY REGISTRAR