Automated Summary
Key Facts
The applicants sought leave to file an appeal out of time against a 2012 interlocutory judgment dismissing their application to set aside a land transfer. The initial application in 2019 was filed one week after the appeal period lapsed, and was later withdrawn by the court on 5 August 2020 due to jurisdictional issues. The applicants attributed the delay to an inadvertent filing in the wrong court (Busia High Court instead of Environment and Land Court) and a subsequent withdrawal. The respondent opposed the application, arguing it was an abuse of process and citing laches, as the appeal was filed 10 months after receiving certified proceedings. The court ruled in favor of the applicants, finding the delay was unintentional and the appeal raised arguable issues, granting seven days to file the appeal and awarding costs to the respondent.
Issues
The court considered whether the applicants satisfied Section 79G requirements for an out-of-time appeal, including demonstrating good cause, absence of prejudice to the respondent, and timely application, after their initial filing was withdrawn due to jurisdictional issues.
Holdings
The court determined that the applicant's application for leave to file an appeal out of time was merited. The court extended the time to file the appeal by seven days from the date of the ruling, acknowledging the delay was not intentional and the appeal raises arguable issues. Costs of the application were awarded to the respondent.
Remedies
- The costs of the application were awarded to the Respondent in any event.
- The court allowed the application by extending the time to file the appeal by a period of seven days from the date of delivery of the ruling.
Legal Principles
- The court emphasized that the applicant must satisfy the burden of proving good and sufficient cause for not filing the appeal in time under Section 79G of the Civil Procedure Act. This includes demonstrating reasonable delay, absence of prejudice to the respondent, and the application being brought without undue delay.
- The court ruled that the costs of the application would be awarded to the respondent in any event, as per the standard costs principles applied in such cases.
- The court considered the principle of case-by-case discretion in extending time for appeals, as outlined in the Supreme Court case Nicholas Kiptoo Korir vs. IEBC. This includes evaluating whether the delay was inadvertent, the merits of the appeal, and the existence of an arguable issue.
Precedent Name
- SEREPHEN NYASANI MENGE V. RISPAH ONSANSE
- Nicholas Kiptoo Korir arap Salat vs. IEBC & 7 Others
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules
Judge Name
A. OMOLLO
Passage Text
- The underlying principles a court should consider in exercise of such discretion include: 1. Extension of time is not a right... 6. Whether the application has been brought without undue delay.
- Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
- I find that the applicant's application is merited and allow it by extending time to file their appeal by a period of Seven days from the date of delivery of this ruling.