WOCHE IMALA v ADAN CHULA SODE [2008] KEHC 412 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

Misc. Civ. Appli. 512 of 2008

WOCHE IMALA……………....……………………..APPLICANT

VERSUS

ADAN CHULA SODE………………....……….....RESPONDENT

R  U  L  I  N  G

By a notice of motion dated 27th August, 2008, Woche Imala, the applicant herein, seeks inter alia orders as follows: -

(i)    That this honourable court be pleased to grant leave to the applicant to file an appeal out of time against the judgment and decree delivered by the Senior Resident Magistrate at Moyale on 30th April, 2008 in Civil Suit No.2 of 2008 between Adan Chula and Woche Imala.

(ii)   That this honouarble court be pleased to grant stay of execution of the said judgment and decree until the hearing and final determination of the appeal.

The application is supported by an affidavit sworn by Woche Imala dated 20th August, 2008.  The applicant depones that he was never served with the plaint or summons to enter appearance and only came to learn about the suit and judgment having been entered against him long after the judgment had been entered.  The applicant further explains that he is a sickly, illiterate old man aged 75 years old.  He has annexed a copy of his birth certificate and also a photograph showing that he walks on crutches.  The applicant further contends that the unregistered land claimed by the respondent, Adan Chula Sode, belongs to him and he has annexed a copy of a letter of the District Agricultural Officer, confirming that he is the owner of the land.

The respondent has filed a replying affidavit objecting to the application contending that it has no merit, as the applicant has not explained why it took him four months to bring his application.  It is further maintained that the applicant has not shown any sufficient cause why there should be extension of time for the filing of his appeal or why there should be a stay of execution of the judgment of the lower court.  The respondent maintains that the applicant was all along aware of the land dispute the same having been adjudicated upon by elders, the chief and the District Officer, Central Division, Moyale District.  He maintained that the application was an afterthought and urged the court to dismiss the same.

Having considered the application, I find that the applicant’s contention that he is a sickly old man has not been disputed.  It is also apparent that the suit involves land which is a very emotive issue.  Further, the land, subject of the suit, is situated in North Eastern Kenya, where there is no High Court.  The applicant has explained that the delay was caused by his being unaware of the suit.  Although the applicant has not been very specific as to the date when he learnt of the suit, given his age and the special circumstances of this case, it is only fair and just that the applicant be given an opportunity to have his day in the High Court.  For these reasons, I allow the notice of motion dated 27th August, 2008 and grant prayers No. (ii) and (iii) subject to the applicant filing a record of appeal within 90 days from the date hereof.

Costs of the application shall be in the appeal.

Those shall be the orders of this court.

Dated and delivered this 16th day of December, 2008

H. M. OKWENGU

JUDGE

In the presence of: -

Advocate for the applicant absent

Jaoko for the respondent