[2007] KEHC 2860 (KLR)
The court found that the applicant had provided a satisfactory explanation for the five-month delay in filing the appeal, attributing it to the mistake of his previous advocate. The delay was not inordinate, and the respondents did not contest the facts or file a Replying Affidavit. Exercising its discretion, the...
Source-derived case information.
- Citation
- [2007] KEHC 2860 (KLR)
- Parties
- Applicant: Amos Mwathi; Respondent: Kahungura Kibugu; Respondent: Kikuyu Town Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 136 of 2003
- Procedural Posture
- Civil Appeal / Application for Leave to File Appeal Out of Time
- Outcome
- Application allowed.
- Judges
- ARM Visram
- Legal Topics
- Extension of Time, Appeal Out of Time, Mistake of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Mwathi
Applicant
Kahungura Kibugu
Respondent
Kikuyu Town Council
Respondent
Procedural Posture
Civil Appeal / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time due to the delay caused by his previous advocate.
- 2 Whether the delay of five months in filing the appeal is excusable.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the five-month delay in filing the appeal, attributing it to the mistake of his previous advocate. The delay was not inordinate, and the respondents did not contest the facts or file a Replying Affidavit. Exercising its discretion, the court allowed the application for leave to file the appeal out of time.
Court Disposition
Application allowed.
Orders
- The application dated 17th January, 2005 is allowed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 136 of 2003
AMOS MWATHI …………………….………………….. APPLICANT
VERSUS
KAHUNGURA KIBUGU ……………………….. 1ST RESPONDENT
KIKUYU TOWN COUNCIL …………………… 2ND RESPONDENT
RULING
This is an application for leave to file Appeal out of time. When Counsels appeared before this Court on 7th February, 2007, they asked that I rely on submissions made previously (on 21st February, 2005) before me, to write my Ruling. At that time, the same application was struck out for failure to comply with 0. 3 R.9A of the Civil Procedure Rules. Since then, the application has been reinstated by consent.
In the affidavit supporting the application, the Applicant attributes the delay to a mistake on the part of his previous advocate, who did not inform him of the summary dismissal of his suit in the Lower Court. The suit was dismissed on 31st October, 2002, and the Memorandum of Appeal was filed on 14th March, 2003. The delay is only five months, has been well explained, and the facts have not been controverted. There is indeed no Replying Affidavit.
Accordingly, I allow the application dated 17th January, 2005. Costs shall be in cause.
Dated and delivered at Nairobi this 7th day of March, 2007.
ALNASHIR VISRAM
JUDGE