[2020] KECA 393 (KLR)
The court found that the applicant had acted without undue delay in seeking to obtain proceedings and in filing the application for extension of time. The period between the delivery of judgment and the filing of the motion was 36 days, which the court did not consider inordinate. The court was satisfied that the...
Source-derived case information.
- Citation
- [2020] KECA 393 (KLR)
- Parties
- Applicant: Tagage Hussein Edema; Respondent: Hussein Edema Bariso
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 119 of 2019
- Procedural Posture
- Civil Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed. Leave granted to file and serve Notice of Appeal within seven days.
- Judges
- F Sichale
- Legal Topics
- Extension of Time, Notice of Appeal, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Tagage Hussein Edema
Applicant
Hussein Edema Bariso
Respondent
Procedural Posture
Civil Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the Notice of Appeal.
- 2 Whether the delay in filing the Notice of Appeal is inordinate and prejudicial to the respondent.
Ratio Decidendi
The court found that the applicant had acted without undue delay in seeking to obtain proceedings and in filing the application for extension of time. The period between the delivery of judgment and the filing of the motion was 36 days, which the court did not consider inordinate. The court was satisfied that the reasons advanced for the delay, including the change of advocate and efforts to obtain proceedings, constituted sufficient cause. Consequently, the court exercised its discretion to grant the extension sought, allowing the applicant to file and serve the Notice of Appeal within seven days.
Court Disposition
Application allowed. Leave granted to file and serve Notice of Appeal within seven days.
Orders
- The applicant is granted leave to file and serve the Notice of Appeal within seven (7) days of the date of the ruling.
- Each party to bear his own costs.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
[CORAM: SICHALE, JA IN CHAMBERS]
CIVIL APPLICATION NO. 119 OF 2019
BETWEEN
TAGAGE HUSSEIN EDEMA ………………………………………APPLICANT
AND
HUSSEIN EDEMA BARISO ……………………………………..RESPONDENT
(An application for extension of time to file a Notice of Appeal against the judgment of the High Court of Kenya at Marsabit (Chitembwe, J) dated 19th June, 2019IN Marsabit Misc. Succession Cause No. 1 of 2018
RULING
The applicant, Gagaye Hussein Edema filed a Notice of Motion dated 25th July, 2019. The motion is an omnibus application containing several prayers that cannot be handled by a single judge.I shall however deal with prayer No. 3 in the motion that seeks extension of time to file a Notice of Appeal and “…Consequential MemorandumofAppeal…” against the High Court decision rendered on 19th June, 2019 in Marsabit Miscellaneous Succession No. 1 of 2018.
The motion is supported by the affidavit of the applicant sworn on the same day (25th July, 2019). The reason for the delay is attributed to the applicant’s change of advocate from the firm of Messrs Biwott Korir & Co. Advocates to the firm of Ndungu & Co. Advocates. The applicant annexed a letter dated 21st June,2019from his previous counsel applying for typed proceedings and a receipt of payment of Ksh 2,000. 00 being costs of proceedings and another receipt of Kshs 2,670. 00 being further costs for the proceedings.
TherespondentHusseinEdamaBarisoopposedthemotionvidean affidavit dated 20th December, 2019 on the basis, inter alia, that the appeal has no chances of success.
Ihaveconsideredthemotion,anditssupportingaffidavitandthe respondent’s replying affidavit in opposition to the motion in absence of counsel due to the prevailing circumstances caused by Covid 19 pandemic. In my view,the time lapse from the date of delivery of judgment (19thJune, 2019) and the subsequentendeavoursbytheapplicanttoobtainproceedingsweredone without delay. I note that the motion was filed on 25th July, 2019, within a period of 36 days from the date of judgment on 19th June, 2019. This delay cannot be said to be inordinate.
It is in view of the above that I grant leave to the applicant to file and serve the Notice of Appeal within seven (7) days of today’s date.
Each Party to bear his own costs.
Dated and Delivered at Nairobi this 7thDay of August, 2020.
F. SICHALE
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR