Desmond Mutuma Mwiti & Ashford Mwiti v Duncan Muthomi [2019] KEELC 1483 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

MISCELLANEOUS APPLICATION NO. 29 OF 2019

DESMOND MUTUMA MWITI..............1ST APPLICANT/INTENDED APPLICANT

ASHFORD MWITI................................2ND APPLICANT/INTENDED APPELLANT

VERSUS

DUNCAN MUTHOMI.............................................................................. RESPONDENT

RULING

1. Vide the application dated 2. 7.2019, applicant prays that he be granted leave to appeal out of time against the judgment delivered on 3. 4.2019 by Hon. J. Irura in Nkubu ELC no. 32 of 2018. The grounds in support of the application are set out in the body of the application and in the supporting affidavit.

2. Applicant avers that on 20. 1.2019, they were given directions that judgment would be delivered on 20. 3.2019 but on this latter date, the said judgment was differed to 15. 5.2019.  However on 15. 5.2019, applicant learnt that the judgment was delivered on 3. 4.2019 without his notice and in absence of all parties where by his case was dismissed.

3. I have perused the decision delivered on 3. 4.2019 and at the tail end, the record reads as follows:

“Ruling read and delivered in open court in the absence of the parties………. 3. 4.2019”.

4. This court does not have the full record of the lower court.  However going by the record so far available, I do find that the application is merited.

5. The application dated 2. 7.2019 is allowed on condition that the memorandum of appeal is filed within 14 days from the date of delivery of this ruling failure to which the orders granted herein shall lapse.  No orders as to costs.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 9TH DAY OF OCTOBER, 2019 IN THE PRESENCE OF:-

C/A:  Kananu

Ms. Matei hodling brief for Kaumbi for applicant

Muriithi holding brief for Muriira for respondent

Respondent

HON. LUCY. N. MBUGUA

ELC JUDGE