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ELCPartially AllowedNot stated in judgment (application dated 24th January, 2022)· [2022] KEELC 957 (KLR)

Hassan Dabaso Duba v Catholic Diocese of Marsabit [2022] KEELC 957 (KLR)

Environment and Land Court of Kenya
14 March 2022
PNP. M. Njoroge
686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a delayed appellant more time to appeal because he never received notice of the judgment date.

What this practically means

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Executive summary

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This was an application dated 24th January 2022 in the Environment and Land Court at Isiolo seeking leave to appeal out of time against the judgment of Honourable Mbayaki Wafula, Senior Resident Magistrate, Marsabit, delivered on 14th July 2021, together with an order that the annexed memorandum of appeal be deemed duly filed upon payment of requisite fees. The application was supported by an affidavit of George Korongo, the plaintiff's advocate, who explained that he attended court for judgment on the delivery date but was told judgment was not ready and would be delivered on notice; the trial court never notified him of the delivery date. He learned of the judgment only through follow-up calls and a visit to the registry. He further deponed that the Marsabit registry refused to file his application because the trial magistrate had been transferred, and that after follow-up he was advised that Marsabit matters would be heard in Isiolo. He asserted that the appeal was arguable and that the respondents would suffer no prejudice. When the matter came for inter partes hearing, Advocate Ashava, holding brief for Mr. Korongo, asked that the application be allowed as unopposed; although the defendant had been properly served, it was not represented. In a brief ruling, Justice P. M. Njoroge allowed prayers 2 and 3 of the application, granted leave to appeal out of time, deemed the memorandum of appeal filed upon payment of fees, ordered costs in the cause, and directed the plaintiff to serve the orders on the defendant within 14 days, with directions fixed for 16th May 2022.

Key legal issues

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01

Extension of time to appeal out of time

Holding

Leave to appeal out of time granted where the applicant's delay was explained by non-communication of the judgment date, attempts to obtain the judgment, and registry obstacles at Marsabit and Meru, and the application was unopposed.

Reasoning

The applicant's advocate explained that he attended court for judgment on 14th July 2021 but was told it was not ready, later learned it had been delivered, and faced refusals at the Marsabit registry and redirection from Meru to Isiolo. The defendant, though properly served, did not appear or oppose. On those facts and in the interest of justice, the court allowed prayers 2 and 3.

p. 1

Legal principles established

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  • Where failure to file an appeal in time was caused by lack of notification of the judgment date and difficulty in accessing the court file, the court may enlarge time in the interest of justice, especially where the application is unopposed.

Court orders

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  1. 1.Prayers 2 and 3 in the application are allowed (leave to appeal out of time granted and memorandum of appeal deemed filed upon payment of requisite fees)
  2. 2.Costs shall be in the cause
  3. 3.Plaintiff to serve the orders issued by the court upon the defendant within 14 days
  4. 4.Directions on 16/5/2022
On appeal from
Senior Resident Magistrate's Court, Marsabit
Not stated
Jurisdiction invoked
Inherent power to enlarge time for filing an appeal (extension-of-time application under the applicable civil procedure provisions; no specific article cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hassan Dabaso Duba v Catholic Diocese of Marsabit [2022] KEELC 957 (KLR)", Case Analysis (2022). Not stated in judgment (application dated 24th January, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/957/eng@2022-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.