[2003] KEHC 227 (KLR)
The court found that the application was properly brought under Section 79 G of the Civil Procedure Act, which allows for exclusion of time required for preparation and delivery of proceedings and judgment when calculating the period for filing an appeal. The applicant had applied for the necessary documents...
Source-derived case information.
- Citation
- [2003] KEHC 227 (KLR)
- Parties
- Applicant: Alexander Maigwa Mwangi; Respondent: Anne Wamucii Muhihi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 55 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Certificate of Delay, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Maigwa Mwangi
Applicant
Anne Wamucii Muhihi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time under Section 79 G of the Civil Procedure Act.
- 2 Whether the delay in filing the appeal was sufficiently explained and excusable.
- 3 Whether the application was properly brought under Section 79 G of the Civil Procedure Act instead of Order 49 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application was properly brought under Section 79 G of the Civil Procedure Act, which allows for exclusion of time required for preparation and delivery of proceedings and judgment when calculating the period for filing an appeal. The applicant had applied for the necessary documents promptly and received them after a delay certified by the lower court. Excluding this period, the applicant acted within the statutory thirty-day period for filing an appeal. The court was satisfied that there was no inordinate or unexplained delay and that the proceedings and judgment were necessary for the intended appeal. Accordingly, leave to file the appeal out of time was granted.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file his appeal within fifteen days from the date of this ruling.
- Costs of this application shall be costs in the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC. APP. NO. 55 OF 2003
ALEXANDER MAIGWA MWANGI……………………….APPLICANT
VERSUS
ANNE WAMUCII MUHIHI………………………..…..RESPONDENT
R U L I N G
The applicant has come to this court under Section 79 G of the Civil Procedure Act seeking leave of this court to file his intended appeal against the judgment delivered on 20th November 2002 in Nyeri CMCC No.360 of 2001. The applicant has explained that the delay in filing the appeal was due to the delay in obtaining the proceedings and judgment from the Lower Court even though the same were applied for in time. A certified copy of the proceedings together with a certificate of delay confirming that the proceedings were applied for on 21st November 2002, but received on 17th February, 2003 has been availed.
The application is objected to on the grounds that the proceedings were not necessary for the appeal to be filed, and that there was a further delay after receipt of the proceedings which delay has not been explained, and further that the application ought to have been brought under order 49 of the Civil Procedure Rules and not Section 79 G of the Civil Procedure Act.
I have carefully considered this application and the submissions of both counsels. It is evident that the judgment subject of the intended appeal was delivered on 20th November 2002 and that the applicant applied for copies of the proceedings and judgment on 21st November 2002 but did not receive them until 17th February 2003.
Section 79 G of the Civil Procedure Act is a substantive Provision dealing with time for filing appeals from subordinate court. Order 49 of the Civil Procedure Rules is intended to add on to the Substantive Provisions of the Civil Procedure Act. It is not intended to derogate from the provisions of the Act nor is it intended to replace the provisions of the Act. This application was therefore properly brought under Section 79 G of the Civil Procedure Act which provides for a period of thirty days for filing an appeal from a Subordinate Court:-
“excluding from such period any time which the lower Court may certify as having been Requisite for the preparation and delivery to the appellant of the copy of the decree or order.”
The certificate herein related to the period required for the preparation of the proceedings and judgment. I am satisfied that these were necessary to enable the applicant file his appeal. There has therefore been no inordinate delay as the total period taken by the applicant excluding the period taken to prepare and provide the proceedings was within thirty days.
I do therefore allow this application and grant leave to the applicant to file his appeal within fifteen days from the date hereof.
Costs of this application shall be costs in the appeal. Orders accordingly.
Dated, Signed and Delivered this 22 nd day of December 2003.
H. M. OKWENGU
JUDGE