Abubakar v Buke (Miscellaneous Application E006 of 2023) [2025] KEELC 203 (KLR) (30 January 2025) (Ruling)
Neutral citation:
[2025] KEELC 203 (KLR)
Republic of Kenya
Miscellaneous Application E006 of 2023
LC Komingoi, J
January 30, 2025
Between
Kamaria Hussein Abubakar
Applicant
and
Samara Buke
Respondent
Ruling
1.This is the Chamber Summons dated 23rd September 2023 brought under;
2.It seeks orders;1.Spent.2.Spent.3.That the Applicant be and is hereby granted leave to appeal against the Judgement delivered on 31st July, 2023 by Honourable L.L. Gicheha.4.That upon grant of leave, the applicant be allowed to file appeal out of time.5.Costs be in cause.
4.The Application is supported by the Affidavit of Kamaria Hussein Abubakar, the Applicant herein, sworn on the 20th September 2023.
5.The Application was canvassed by written submissions. It is the Applicant’s submissions that the Learned Trial Magistrate was on transfer during the delivery of the Judgement. That no link was provided for the said date. The judgement was delivered in the absence of the parties.
6.It is her case that she became aware of the judgement on the 1st September 2023.
7.Counsel has relied on Section 79 G of the Civil Procedure Act, which provides that;
8.Counsel also submitted that this Honourable court has unfettered discretion to extend the time for filing an appeal.He has put forward the case of APA Insurance Co. Limited v Michael Kinyanjui Muturi (2016) eKLR which quoted with approval the decision of Odek JJA in the case of Edith Gichungu Koine v Stephen Njagi Thoithi (2014) eKLR.He prays that the Application be allowed.
9.I have considered the Chamber Summons, the affidavit in support, the response thereto, the written submissions and the authorities cited. The issue for determination is whether this application is merited.
10.I have considered the reasons advanced by the Applicant. I note that the Judgement was delivered on the 31st July 2023 in the absence of the parties. It is not clear whether the parties were aware of the date of delivery of the Judgement.
11.In the circumstances I find merit in this application and the same is allowed in the following terms;a.That the Applicant is hereby granted leave to file the appeal out of time against the Judgement delivered on 31st July 2023 by Honourable L.L. Gicheha.b.That the Applicant do file a Memorandum of Appeal and the Record of Appeal within 30 days from the date of this ruling In defaultthe leave granted herein shall be considered to have lapsed automatically.c.That costs of this application be in the cause.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 30TH DAY OF JANUARY 2025.L. KOMINGOIJUDGE.In the presence of:N/A for the Applicant.N/A for the Respondent.Court Assistant – Mutisya.