Ololmetetek Karuna Simeon v Mary Potishoi & Leshan Metetek [2021] KEHC 7553 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

SUCCESSION CAUSE NO.5 OF 2020

OLOLMETETEK KARUNA SIMEON....................................OBJECTOR/APPLICANT

VERSUS

MARY POTISHOI.................................................................................1ST RESPONDENT

LESHAN METETEK............................................................................2ND RESPONDENT

RULING

1. By a Notice of Motion dated 17/7/2020 the objector/applicant Ololmetetek Karuna Simeon hereinafter referred to as the applicant seeks to be granted an extension of time to file and or lodge an application for leave to appeal against the Ruling and or orders of this court rendered on the 4/5/2020.

The applicant also seeks the following orders;

(1) Spent

(2) The court admits and or either grant leave to the objector to file and lodge an appeal to the Honourable Court of Appeal against the Ruling order and on decision delivered on the 4/5/2020 and

(3) Consequent to prayer 2 herein being granted, the Honourable court to admit and/or otherwise grant leave to the Objector/Applicant to file and/or lodge an appeal to the Honourabe Court of Appeal, against the Ruling, Order and/or Decision delivered on the 4th day of May 2020.

(4) The Honourable Court be pleased to extend time within which the Objector/Applicant herein do file and/or lodge the requisite Notice of Appeal to this Honourable Court and thus evidencing an intention to prefer and/or mount an Appeal to the Court of Appeal.

The application is grounded on the grounds on the face of the application together with the applicants supporting affidavit dated the 17/7/2020.

2. Despite being served the Respondent did not file any response. The application therefore was unopposed.

3. I have considered the grounds and the facts deponed in the supporting affidavit of the applicant. The applicant claims that when the Ruling was delivered in May 2020 there was Covid 19 pandemic which was coupled with a period of lockdown and curfew. That movement including his movement was restricted and that releyance of information was substantially impaired and on or otherwise limited. That as result there was delay in receipt of the communication pertaining to the delivery of the ruling and that he only became aware of the Ruling on the 4/7/2020.

4. That upon receipt of the ruling he expressed his desire to challenge the Ruling as he was dissatisfied with the Court’s Ruling. That the intended appeal raised plausible pertinent and salient issues of fact and law and that the appeal is arguable.

5. The Ruling in this matter was delivered on the 4/5/2020. The application was filed on the 30/7/2020 about 1 ½ months later.

6. Each case is considered on its own facts as deponed in a statement or affidavit. The applicants main reason for delay which in my view is not inordinate is the restricted movement during the Covid pandemic which affected the whole country. For this reasons I will extend the time to the applicant to file or lodge for leave to appeal against the court’s Ruling dated 4/5/2020 to 30 days from the date of this Ruling.

7. Having granted the above prayer, the next issue is whether the applicant is entitled to an order for leave to file and lodge an appeal to the Court of Appeal.

8. In his supporting affidavit the applicant states how he has been aggrieved by the said Ruling paragraph 12, 13, 14, 15 &16. The applicant has a right of appeal, he has expressed his view that the court erred in its Ruling on matters of law.

9. I will exercise my discretion in favour of the applicant and grant him prayer 3 & 4 of his application dated 17/7/2020. The applicant is granted 30 days within which to lodge the appeal and 14 days to lodge his Notice of appeal. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT KISII THIS 26TH DAY OF MARCH, 2021.

R. E. OUGO

JUDGE

In the presence of:

Mr. Kipngetich  For the Applicant

Respondents  Absent

Ms Rael Court Assistant