[2023] KEELC 626 (KLR)
The court found that the applicant had established good reason for extension of time, as the failure to serve the applicant's counsel with the date of judgment deprived the applicant of the opportunity to exercise the right of appeal within the statutory period. The absence of opposition from the respondents and the...
Source-derived case information.
- Citation
- [2023] KEELC 626 (KLR)
- Parties
- Applicant: Speed Capital Limited; Respondent: Faith Wangu Gathu; Respondent: Cleverline Auctioneers Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E030 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- MN Gicheru
- Legal Topics
- Extension of Time, Leave to Appeal, Service of Judgment, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Speed Capital Limited
Applicant
Faith Wangu Gathu
Respondent
Cleverline Auctioneers Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has established sufficient cause for extension of time to file an appeal out of time.
- 2 Whether failure to serve the applicant's counsel with the judgment date justifies enlargement of time.
Ratio Decidendi
The court found that the applicant had established good reason for extension of time, as the failure to serve the applicant's counsel with the date of judgment deprived the applicant of the opportunity to exercise the right of appeal within the statutory period. The absence of opposition from the respondents and the lack of submissions did not detract from the applicant's demonstrated diligence upon learning of the judgment. The court exercised its discretion under Order 50 Rule 6 of the Civil Procedure Rules to enlarge the time for filing an appeal by 30 days and deemed the memorandum of appeal as duly filed and served.
Court Disposition
application allowed
Orders
- Time for filing an appeal is enlarged by 30 days from the date of this ruling.
- The memorandum of appeal dated October 30, 2020 is deemed as duly filed and served.
Full Case Text
Judgment text and source record
22 paragraphs
Speed Capital Limited v Gathu & another (Environment and Land Miscellaneous Application E030 of 2021) [2023] KEELC 626 (KLR) (31 January 2023) (Ruling)
Neutral citation: [2023] KEELC 626 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Miscellaneous Application E030 of 2021
MN Gicheru, J
January 31, 2023
Between
Speed Capital Limited
Plaintiff
and
Faith Wangu Gathu
1st Defendant
Cleverline Auctioneers Limited
2nd Defendant
Ruling
1. This ruling is on notice of motion dated October 30, 2020. It seeks the main orders as follows.i.That the Defendant/Applicant be granted leave to appeal out of time against the judgment of Hon M Kasera, delivered on 13/5/2020 in Kajiado CMELC 93 of 2018. ii.That the memorandum of appeal annexed hereto be deemed as duly filed and served.
2. The motion which is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 50, Rules 5 and 51,Rule 1Civil Procedure Rules and all enabling provisions of law is supported by seven (7) grounds, an affidavit sworn by Jimmy Karebe and about five annexures.The gist of the above material is that the judgment of the lower court which was to be delivered on 6/11/2019 was not delivered on that date. It was eventually delivered on 13/5/2020 and the Applicant’s counsel was not aware of this. It is only on October 16, 2020 when the Applicant learnt the judgment had been delivered without their knowledge or that of their counsel.
3. The Application is unopposed because no replying affidavit has been filed by or on behalf of the Respondents. Counsel for both sides were to file written submissions by December 20, 2022 but as I write this ruling in late January 2023, no submissions have been filed by either party.
4. I have carefully considered the application in its entirety and I find that there is a good reason established by the Applicant for extension of time within which to file an appeal. Failure to serve the Applicant’s counsel with the date of the judgment meant that the Applicant could not exercise their right of Appeal within the prescribed period of 30 days.
5. Under Order 50, Rule 6, Civil Procedure Rules, I allow the Notice of Motion dated October 30, 2020 and enlarge the time within which to file an appeal by 30 days.Secondly, I order that the Memorandum of Appeal dated October 30, 2020 be deemed as duly filed and served.It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 31ST DAY OF JANUARY, 2023. M.N. GICHERUJUDGE