1. The background of this application is that the appellant Magdaline Jeptum Keitany filed a memorandum of appeal dated 1st March, 2024 on 5th March, 2024. A file was opened, Kabarnet ELC Appeal No. E004 of 2024.
2. On 11th March 2024, the appellant Magdalene Jeptum Keitany filed an application dated 6th March 2024 seeking leave to file an appeal out of time against the whole Judgment of Hon. Edwin Mulochi SRM, delivered on 30th January 2024 in Kabarnet SPM ELC No. 22 of 2019. Another file was opened; Miscellaneous Application No. E005 of 2024.
3. This court considered the application seeking leave to file appeal out of time and dismissed the application on 29th May, 2024.
4. Dissatisfied with the ruling, the applicant filed an application dated 22nd July, 2024 seeking among other orders, that the orders issued in the ruling delivered on 29th May, 2024 be varied, reviewed and or set aside.
5. The application was anchored on the grounds that there was an error apparent on the face of the record; that the letter dated 5th March 2024 by Geoffrey Otieno Advocate requesting the executive Officer Kabarnet Law Courts for certified copies of typed proceedings was written on 30th January 2024, two months after delivery of judgement and not two years after delivery of judgement, as stated in the ruling of 29th May, 2024; that the error being so obvious, the court ought to review and/ or set aside the ruling and substitute the order with one in favour of the correct position.
6. Vide a ruling delivered on 19th February 2024, this court allowed the application and in part stated;
“I have noted that there is a Memorandum of Appeal on record which I hereby deem as duly filed upon payment of the requisite fees. Having found the applicant is entitled to pursue his appeal, I set aside the orders in the ruling delivered on 29th May 2024 and substitute those orders with the following orders;
1. Leave is hereby granted to the applicant to file an appeal out of time against the Judgment of Hon. Edwin Mulochi SRM, delivered on 30th January 2024 at Kabarnet in Kabarnet SPM ELC Suit No. 22 of 2019.
2. The memorandum of appeal dated 1st April 2024 is deemed as duly filed upon payment of the requisite fees.
3. A record of appeal to be filed in 21 days.
4. In default, the application will automatically stand dismissed.
5. Costs will be in the cause”
7. As stated in paragraph 1 of this ruling, the applicant filed a memorandum of appeal on 5th March, 2024. The file was placed before this court after dismissal of the application seeking leave to appeal out of time on 19th June, 2024. Having dismissed the aforesaid application, the court found no appeal pending before it, and ordered that the file be closed.
8. The appellant/ applicant filed the instant application in the appeal file which was closed on 19th June 2024 seeking the following orders;
1. That this honourable court be pleased to reinstate the appellant/applicant suit herein filed on 5th March 2024 pursuant to the ruling of 19th February 2025 in ELC Misc. application E005 of 2024.
2. That this honourable court be pleased to extend the time which the appellant herein may set the suit down for hearing.
3. That this hounourable court be pleased to give directions as to an early hearing date for the appellant’s suit.
4. That costs of this application be provided for.
9. The application is premised on the grounds on the face of the application and supported by the affidavit of Joy Temba Shirandula sworn on 11th April 2025. She deposes that the applicant filed an appeal on 5th March 2024 but failed to file the record of appeal due to delay in typing and certification of proceedings resulting in dismissal of the appeal for want of prosecution on 19th February 2025; that when the applicant tried to file the record of appeal, he was informed that the appeal had been dismissed for want of prosecution. He urges the court to reinstate the appeal.
10. The application is not opposed.
Analysis and determination
11. I have read the application, the grounds, the affidavit in support and looked at the background of this appeal. I find the issue for the court’s consideration to be whether the orders sought are merited.
12. As stated in paragraph 7 of this ruling, the court allowed the application dated 22nd July 2024 and deemed the memorandum of appeal dated 1st April 2024 attached to the application as duly filed upon payment of the requisite fees. The court also directed the applicant to file a record of appeal in 21 days failing which the application would stand dismissed.
13. The applicant filed the record of appeal on 11th March 2025 in ELC Appeal No. E004 of 2024 (which file was closed on 19th June, 2024) but did not pay for the memorandum of appeal as ordered. The orders of the court issued on 19th February 2024 only required the applicant to pay for the memorandum of appeal, file the record of appeal and the registry would open a file for the appeal as there was no existing file.
14. Having filed the record of appeal within the timelines given, the appellant/applicant is hereby directed to pay for the memorandum of appeal. upon payment, the registry is directed to open a file for the appeal, call for the Lower court file and forward the file for admission.
15. As the orders sought in the application cannot be granted as prayed, the application is hereby dismissed with no orders as to costs.
16. Orders accordingly.
Dated, signed and delivered at Kabarnet this 3rd day of June, 2025.
In the presence of;-
Ms. Temba holding brief for Mr. Otieno for the Appellant /Applicant.
Mr. Muraya for the Respondent
Court Assistant: Lilian