Eliud Wambua Kiangi v Martha Ndunge Kasinga & Jane Mutu Kasinga [2015] KEHC 4364 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISCELLANEOUS APPLICATION NO. 51 OF 2013

ELIUD WAMBUA KIANGI……….……………….……………APPLICANT

VERSUS

MARTHA NDUNGE KASINGA……....….…………….1ST RESPONDENT

JANE MUTU KASINGA……………………………….2ND RESPONDENT

RULING

The application dated 28th January, 2013 seeks orders that this Honorable court be pleased to grant leave to the applicants to file an appeal out of time against the decision of the Honorable Nyakweba P. M. in his Kilungu PMC Civil Case No. 39 of 2010 judgment.

The failure to file the appeal within time is attributed to the breakdown of communication between the Applicant and his advocate.

The application is opposed.    According to the replying affidavit, the application herein was not filed within reasonable time and neither has the delay been explained.   It is further contended that the Memorandum of Appeal has no chances of success.

The application was canvassed by way of written submissions which I have duly considered.

The lower court judgment was delivered on 24th October, 2012.    The Memorandum of Appeal and the application herein were filed on 29th January, 2013.    Taking into account that time does not run between the period 21st December and 13th January, the delay was less than two months.   The delay was not inordinate.

The reason for the delay is given as breakdown of communication between the applicant and his advocate.    No details have been given to show why there was breakdown of communication.    Be as it may, I take into account that the subject matter is land which is an emotive issue in Kenya.

The memorandum of appeal raises grounds of lack of legal capacity to sue and the question of whether the judgment is against the weight of the evidence.    These are arguable issues.

No prejudice will be suffered by the Respondent that cannot be compensated by way of costs.   I am therefore inclined to exercise this court’s discretion in favour of the applicants.   I allow the application with costs to the Respondents.

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B. THURANIRA JADEN

Dated and delivered at Machakos this 6th day of May, 2015

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B. THURANIRA JADEN

JUDGE