[2018] KESC 40 (KLR)
The Supreme Court found that the applicant's explanation for the delay in filing the appeal was satisfactory, as the delay was not deliberate but arose from lack of awareness of the judgment's delivery. The court held that the delay was not inordinate and that the respondents would not suffer any prejudice,...
Source-derived case information.
- Citation
- [2018] KESC 40 (KLR)
- Parties
- Applicant: Speaker, Kakamega County Assembly; Respondent: Cleophas Wakhungu Malala; Respondent: Clerk, Kakamega County Assembly; Respondent: Kakamega County Assembly
- Court
- Supreme Court
- Court Station
- Supreme Court of Kenya
- Jurisdiction
- Kenya
- Case Number
- Petition 17 of 2016
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- Application for extension of time allowed.
- Judges
- PM Mwilu, JB Ojwang, SC Wanjala, NS Ndungu, I Lenaola
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Court of Appeal Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Speaker, Kakamega County Assembly
Applicant
Cleophas Wakhungu Malala
Respondent
Clerk, Kakamega County Assembly
Respondent
Kakamega County Assembly
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided a satisfactory explanation for the delay in filing the appeal.
- 2 Whether the delay in filing the appeal is inordinate or excusable.
- 3 Whether the respondents would suffer prejudice if the extension is granted.
Ratio Decidendi
The Supreme Court found that the applicant's explanation for the delay in filing the appeal was satisfactory, as the delay was not deliberate but arose from lack of awareness of the judgment's delivery. The court held that the delay was not inordinate and that the respondents would not suffer any prejudice, especially since they did not oppose the application. The court exercised its discretion under Section 23(2)(b) of the Supreme Court Act and Rule 23 of the Supreme Court Rules, 2012 to allow the application for extension of time, permitting the applicant to file and serve the appeal within 14 days of the ruling. No order as to costs was made.
Court Disposition
Application for extension of time allowed.
Orders
- The Notice of Motion Application dated 1st May, 2016 is allowed.
- The applicant shall file and serve the appeal within 14 days of this ruling.
Full Case Text
Judgment text and source record
28 paragraphs
Speaker, Kakamega County Assembly v Malala & 2 others (Petition 17 of 2016) [2018] KESC 40 (KLR) (13 April 2018) (Ruling)
Speaker, Kakamega County Assembly v Cleophas Wakhungu Malala & 2 others [2018] eKLR
Neutral citation: [2018] KESC 40 (KLR)
Republic of Kenya
In the Supreme Court of Kenya
Petition 17 of 2016
PM Mwilu, DCJ & V-P, JB Ojwang, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
April 13, 2018
Between
Speaker, Kakamega County Assembly
Applicant
and
Cleophas Wakhungu Malala
1st Respondent
Clerk, Kakamega County Assembly
2nd Respondent
Kakamega County Assembly
3rd Respondent
((Being an application for extension of time to file an appeal against the Court of Appeal’s Judgment in Civil Appeal No.77 of 2014 (Maraga, Musinga, Kairu, JJA) delivered on 12th February, 2016)
Ruling
1. Uponperusing the Notice of Motion Application dated 1st May, 2016 and filed on 5th July, 2016, for extension of time to file an appeal against the Court of Appeal’s Judgment in Civil Appeal No.77 of 2014 and;
2. Uponreading the applicant’s affidavit in support sworn by Prof. Tom Ojienda, SC on 1st July, 2016; and
3. Uponconsidering the written submissions on record for the applicant wherein the applicant contends that the 3 months’ delay in filing an appeal was inadvertent and was occasioned by the fact that the deponent to the affidavit in support of the application, (the advocate for the applicant) and his clients were unaware of the delivery of the Judgment and only got to know of it when he sent his Court clerk to the Kisumu Court of Appeal Registry on 27th June 2016 and he could not therefore have appealed against the judgment delivered on 12th February within the time stipulated in the Rules of this Court;
4. AND having considered the application (noting that the respondents have not opposed the application), by a unanimous decision of this Bench, we make the following Orders under Section 23(2) (b) of the Supreme Court Act, and Rule 23 of the Supreme Court Rules, 2012 (as amended).Orders Reasons
(a) The Notice of Motion Application dated 1st May, 2016 is hereby allowed. (a) The explanation given by the applicant is satisfactory and in the circumstances, we do not regard the delay as inordinate. (See Nicholas Kiptoo Arap Salat v IEBC & 7 Others).Further, there is no apparent prejudice confronting the respondents who have chosen not to oppose the application despite being granted leave by this Court on 2oth July 2016 to file their responses out of time.
(b) The appeal shall be filed and served within 14 days of this Ruling.
(c) There shall be no order as to costs
DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF APRIL, 2018. ........................P. M. MWILUDEPUTY CHIEF JUSTICE & VICE PRESIDENT OF THE SUPREME COURT......................J. B. OJWANGJUSTICE OF THE SUPREME COURT......................S. C. WANJALAJUSTICE OF THE SUPREME COURT......................N. S. NJOKIJUSTICE OF THE SUPREME COURT........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRAR,SUPREME COURT OF KENYA