[2008] KEHC 412 (KLR)
The court found that the applicant's advanced age, ill health, and the emotive nature of the land dispute constituted special circumstances justifying the grant of leave to appeal out of time. The applicant's explanation for the delay, namely lack of awareness of the suit and judgment, was accepted in light of his...
Source-derived case information.
- Citation
- [2008] KEHC 412 (KLR)
- Parties
- Applicant: Woche Imala; Respondent: Adan Chula Sode
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 16 December 2008
- Case Number
- Miscellaneous Civil Application 512 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Stay of Execution, Service of Process, Unregistered Land Disputes
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Woche Imala
Applicant
Adan Chula Sode
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment and decree of the lower court.
- 2 Whether a stay of execution of the judgment and decree should be granted pending the hearing and determination of the intended appeal.
Ratio Decidendi
The court found that the applicant's advanced age, ill health, and the emotive nature of the land dispute constituted special circumstances justifying the grant of leave to appeal out of time. The applicant's explanation for the delay, namely lack of awareness of the suit and judgment, was accepted in light of his personal circumstances and the absence of a High Court in the region. The court held that it was fair and just to allow the applicant an opportunity to be heard on appeal. Accordingly, the application for extension of time and stay of execution was allowed, subject to the applicant filing a record of appeal within 90 days.
Court Disposition
application allowed
Orders
- Leave granted to the applicant to file an appeal out of time against the judgment and decree delivered by the Senior Resident Magistrate at Moyale on 30th April, 2008 in Civil Suit No.2 of 2008.
- Stay of execution of the said judgment and decree granted until the hearing and final determination of the appeal, subject to the applicant filing a record of appeal within 90 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Misc. Civ. Appli. 512 of 2008
WOCHE IMALA……………....……………………..APPLICANT
VERSUS
ADAN CHULA SODE………………....……….....RESPONDENT
R U L I N G
By a notice of motion dated 27th August, 2008, Woche Imala, the applicant herein, seeks inter alia orders as follows: -
(i) That this honourable court be pleased to grant leave to the applicant to file an appeal out of time against the judgment and decree delivered by the Senior Resident Magistrate at Moyale on 30th April, 2008 in Civil Suit No.2 of 2008 between Adan Chula and Woche Imala.
(ii) That this honouarble court be pleased to grant stay of execution of the said judgment and decree until the hearing and final determination of the appeal.
The application is supported by an affidavit sworn by Woche Imala dated 20th August, 2008. The applicant depones that he was never served with the plaint or summons to enter appearance and only came to learn about the suit and judgment having been entered against him long after the judgment had been entered. The applicant further explains that he is a sickly, illiterate old man aged 75 years old. He has annexed a copy of his birth certificate and also a photograph showing that he walks on crutches. The applicant further contends that the unregistered land claimed by the respondent, Adan Chula Sode, belongs to him and he has annexed a copy of a letter of the District Agricultural Officer, confirming that he is the owner of the land.
The respondent has filed a replying affidavit objecting to the application contending that it has no merit, as the applicant has not explained why it took him four months to bring his application. It is further maintained that the applicant has not shown any sufficient cause why there should be extension of time for the filing of his appeal or why there should be a stay of execution of the judgment of the lower court. The respondent maintains that the applicant was all along aware of the land dispute the same having been adjudicated upon by elders, the chief and the District Officer, Central Division, Moyale District. He maintained that the application was an afterthought and urged the court to dismiss the same.
Having considered the application, I find that the applicant’s contention that he is a sickly old man has not been disputed. It is also apparent that the suit involves land which is a very emotive issue. Further, the land, subject of the suit, is situated in North Eastern Kenya, where there is no High Court. The applicant has explained that the delay was caused by his being unaware of the suit. Although the applicant has not been very specific as to the date when he learnt of the suit, given his age and the special circumstances of this case, it is only fair and just that the applicant be given an opportunity to have his day in the High Court. For these reasons, I allow the notice of motion dated 27th August, 2008 and grant prayers No. (ii) and (iii) subject to the applicant filing a record of appeal within 90 days from the date hereof.
Costs of the application shall be in the appeal.
Those shall be the orders of this court.
Dated and delivered this 16th day of December, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the applicant absent
Jaoko for the respondent