[2005] KEHC 2241 (KLR)
The court found that although the applicant's reason for delay—awaiting certified copies of the judgment and proceedings—would not ordinarily suffice, the absence of a replying affidavit from the respondent and the likelihood that the judgment was not available in time justified the exercise of discretion in the...
Source-derived case information.
- Citation
- [2005] KEHC 2241 (KLR)
- Parties
- Applicant: Agnes Waithera Ngugi; Respondent: Charles Njihia Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 375 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Extend Time for Filing Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals, Filing Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Waithera Ngugi
Applicant
Charles Njihia Ngugi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Extend Time for Filing Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal under Section 79G of the Civil Procedure Act.
- 2 Whether the delay in filing the memorandum of appeal is excusable based on the applicant's reasons.
Ratio Decidendi
The court found that although the applicant's reason for delay—awaiting certified copies of the judgment and proceedings—would not ordinarily suffice, the absence of a replying affidavit from the respondent and the likelihood that the judgment was not available in time justified the exercise of discretion in the applicant's favor. The court emphasized that procedural lapses by counsel should not unduly prejudice a litigant's right to appeal, especially where there is no evidence to the contrary from the respondent. Accordingly, the application to extend time was allowed, with directions for prompt filing and service of the memorandum of appeal.
Court Disposition
application allowed
Orders
- The application dated 18th February, 2005 is allowed.
- The memorandum of appeal shall be filed and served within the next seven days.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Misc Civil Appli 264 of 2005
AGNES WAITHERA NGUGI ……………..……………… APPLICANT VERSUS CHARLES NJIHIA NGUGI ……………………………. RESPONDENT
RULING
This is an application to extend the time for filing appeal. It does not indicate the provisions of the law under which it is brought before this Court, but I would not wish to punish the litigant for the carelessness of his Counsel. I assume the Applicant is invoking Section 79 G of the Civil Procedure Act.
The reason given for the delay in filing the Memorandum of Appeal is that the Applicant has applied for, but not received, the certified copy of the Judgment and decree, and the proceedings of the lower court. Ordinarily this would not be a good excuse for not filing the memorandum of appeal in time. Copies of proceedings are not required to do so, although I agree that a copy of the Judgment is needed to help Counsel draft the Memorandum. I assume that a copy of the Judgment was not available within time – there is no evidence to the contrary because the Respondent has chosen not to file any replying affidavit.
Accordingly, I will allow this application dated 18th February, 2005, and direct that the Memorandum of Appeal be filed and served within the next seven days. Costs of this application to the Respondent.
Dated and delivered at Nairobi this 22nd day of June, 2005.
ALNASHIR VISRAM
JUDGE