[2019] KEELC 5095 (KLR)
The court found that the applicant's delay of 1 year and 2 months in seeking leave to appeal out of time was inordinate and inexcusable. The applicant failed to provide sufficient justification for the delay, and the reasons advanced, including lack of legal fees, were not persuasive. The court noted that both...
Source-derived case information.
- Citation
- [2019] KEELC 5095 (KLR)
- Parties
- Applicant: Wilfred Muthamia; Respondent: Luke Mugwimi Gitonga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 36 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Leave to Appeal, Delay and Laches, Injunctions, Land Ownership Disputes
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wilfred Muthamia
Applicant
Luke Mugwimi Gitonga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient justification for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate and excusable under the circumstances.
- 3 Whether granting the application would prejudice the respondent or delay the main suit.
Ratio Decidendi
The court found that the applicant's delay of 1 year and 2 months in seeking leave to appeal out of time was inordinate and inexcusable. The applicant failed to provide sufficient justification for the delay, and the reasons advanced, including lack of legal fees, were not persuasive. The court noted that both parties claim occupation of the suit land and that the substantive dispute should be determined at trial. Granting the application would only serve to delay the main suit and increase acrimony. The court relied on the Supreme Court's guidance that such lengthy delays are inordinate and amount to laches, and therefore dismissed the application.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HGIH COURT OF KENYA AT MERU
ELC MISC APPLICATION NO. 36 OF 2019
WILFRED MUTHAMIA ................................APPELLANT/APPLICANT
VERSUS
LUKE MUGWIMI GITONGA ..........................................RESPONDENT
RULING
1. In the application dated 25. 7.2019, applicant is seeking leave to appeal out of time, that the annexed memorandum of appeal be deemed as duly filed and that costs of this application be provided for.
2. The grounds in support of the application are that the ruling was read on 15th May, 2019, but the applicant did not have legal fees to lodge the appeal immediately. The respondent has threatened to evict the applicant from his land parcel and it is only fair and just that the application be allowed. Applicant also avers that the delay herein is not inordinate and same is excusable under the circumstances.
3. Applicant has also sworn a supporting affidavit dated 25. 7.2019 where he has reiterated the grounds in support of his application. He added that he got the land from his father and he has been in peaceful occupation since 1967.
4. The application is opposed via the replying affidavit of one Luke Mugwimi Gitonga dated 12. 9.2019 where he has deponed that he lower court rightly issued a temporary order of injunction against the applicant on 15. 5.2019 as the applicant was out to illegally and irregularly evict him from the suit land which he has occupied since 2005 when he bought the land and that the applicant never sought to appeal against the said ruling nor did he apply for proceedings. The respondent also avers that the current application was a mere afterthought and that there was no justification as to why the applicant did not appeal within the stipulated time and that the main suit was pending for hearing and if the application was granted the main suit will be delayed. The defendant also in his affidavit prayed for costs.
5. I have weighed all the arguments raised herein. I have also thoroughly gone through the ruling of the magistrate delivered on 15. 5.2019 where it has emerged that both parties were claiming occupation of the suit land. For the applicant herein he was saying he had been on the land since 1967 while respondent claimed he had been on the land since 2005. This means that the parties need to adduce evidence during the trial to support their claims and this ought to be done before the trial court. Allowing this application will only serve the purpose of delaying the determination of the dispute leading to more acrimony. It is not lost to this court that the matter is at the infancy stage before the trial court. The applicant ought to seek for the hearing of the case on priority basis.
6. Further, this application was filed 1 year 2 months from the time the ruling was delivered. In the SCOK Civil Application no, 7 of 2017, the Supreme Court while dealing with an application to extend time to appeal ruled as follows;
“we regard the delay of 1 year 3 months as inordinate and the applicants are guilty of laches”
7. The delay in this case is certainly inordinate and inexcusable. I therefore find that the application is not merited and the same is hereby dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 4TH DECEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Nyenyire holding brief for Kimathi K. for applicant
Ouma for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE