Case ID:183492

Aboyi v Laban & another (Civil Application E35 of 2020) [2021] KECA 75 (KLR) (8 October 2021) (Ruling)

Case Metadata

Case Number:

Civil Application E35 of 2020

Parties:

Aboyi v Laban & another

Date Delivered:

08 Oct 2021

Case Class:

Civil

Court:

Court of Appeal at Kisumu

Case Action:

Ruling

Judge(s):

Jessie Wanjiku Lesiit

Citation:

Aboyi v Laban & another (Civil Application E35 of 2020) [2021] KECA 75 (KLR) (8 October 2021) (Ruling)

Court Division:

Civil

County:

Kisumu

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Aboyi v Laban & another (Civil Application E35 of 2020) [2021] KECA 75 (KLR) (8 October 2021) (Ruling)

Neutral citation number: [2021] KECA 75 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Application No. E35 of 2020

JW Lessit, JA

October 8, 2021

Between

Joshua Alumasi Aboyi

Applicant

and

Alfred Ivusa Laban

1

st

Respondent

Savala Secondary School

2

nd

Respondent

(An Application for extension of time to file Notice of Appeal out of time in an intended appeal against a ruling of the High Court in Kakamega (N.A. MATHEKA, J.) dated 10th October 2017)

Ruling

1.

Even though this application seeks extension of time to file a Notice of Appeal before this court, it has been brought under the wrong provisions of the law. It invokes Sections 3 & 3A of the

Civil Procedure Act

and Order 42 Rule 6 and Order 51 Rule 1 of the

Civil Procedure Rules

. The application was filed on 28

th

February, 2020, challenging the decision of the ELC Court delivered on the 10

th

October, 2017. This was 789 days after the date due for the filing of the said notice.

2.

The reasons advanced why the notice of appeal was not filed in time are that the Applicant went to the wrong courts to challenge the impugned decision, and that he only realized when time had lapsed that he should have approached this court. The Applicant explained that he has been pursuing stay in different courts and had prepared all the documents for filing within the requisite time. He urges that the delay was not deliberate but out of unforeseen mistake.

3.

Having considered the reasons advanced for the delay in bringing this application, I am not satisfied that the delay is adequately explained. The application has been made 789 days out of time. I find this a long and inordinate delay to bring the application by any standards.

4.

In addition, the application has been brought under the wrong provisions of the law, and does not invoke the jurisdiction of this court.

5.

Having considered the above factors, I find that for the reasons I have given above, the most appropriate order to make is to strike out the application with no order as to costs.

Orders accordingly.

DATED & DELIVERED AT NAIROBI THIS 8

TH

DAY OF OCTOBER, 2021

J. LESIIT

.....................................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR