David Oteba Ooko v Peter Joe Emongor [2015] KECA 59 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, JA (IN CHAMBERS)

CIVIL APPLICATION NO. 78 OF 2014

BETWEEN

DAVID OTEBA OOKO…………………………………………………………… APPLICANT

AND

PETER JOE EMONGOR ……………………………………….………………RESPONDENT

(An Application for enlargement or extension of time to lodge a Notice of Appeal against the judgment of the High Court of Kenya at Busia (Kibunja, J.) dated 19th June, 2014

in

ELC  NO. 101 OF 2013)

******************

RULING

1.  This is an application brought principally under Rule 4 of the Court of Appeal Rules for leave to file the notice and record of appeal out of time. The application is based on the grounds that though the applicant  instructed  his  erstwhile  counsel  to  appeal  against  the judgment  in Busia HCC No. 101  of 2013  immediately  after  its delivery, that counsel did not file the notice of appeal.  When, thirty days after  that, the applicant realized that his instructions  had not been carried  out  he  sought  financial  assistance  from  his family members to file this  application but  that  help  came about  six months thereafter.  He contends that he has an arguable appeal and pleads for leave to urge it.

2.   Opposing the application Mr. Ikapel, learned counsel for the respondent, submitted  that there  is no evidence  of the applicant having  instructed  his  erstwhile  counsel  to  appeal against  the judgment. In the circumstances this application  has no merit and should be  dismissed  with  costs. However, if the  application  is allowed, counsel submitted that that should be on condition that the applicant deposits in court the costs of the litigation in the court below.

3.   I have considered the matter.  The success of an application such as this is dependent mainly upon a reasonable explanation being given for the delay or failure to appeal in time.

4.   In this case the judgment sought to be appealed against was delivered in the presence of the applicant. He immediately instructed his lawyer to appeal. When, after thirty days, he realized that his instructions had not been carried out, he was unable to file this application immediately because he had no money to pay another lawyer.  It is after he obtained financial assistance from his family, about  six  months  later,  that  he  immediately  filed  this application.

5.  I have no reason to doubt that the applicant had financial difficulties which caused the delay in filing  of this application. I therefore grant this application and order that the applicant shall file and serve his notice of appeal within fourteen  days of the date hereof and thereafter file the record of appeal within the time specified in the Court of Appeal Rules.  The costs of this application shall be in the appeal

DATED and delivered at Kisumu this 19th day of March, 2015.

D.K.MARAGA

……………………………..

JUDGE OF APPEAL

I certify that this is a true copy

of the original.

DEPUTY REGISTRAR