[2012] KEHC 3326 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the appeal, as the judgment was delivered without notice to his advocates and the proceedings and judgment were not provided despite prompt request. The delay was not due to the applicant's or his advocate's fault. The court was...
Source-derived case information.
- Citation
- [2012] KEHC 3326 (KLR)
- Parties
- Applicant: Andrew Mwangi Chui; Respondent: Gregory Oting’a Koli
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 224 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Out of Time, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Mwangi Chui
Applicant
Gregory Oting’a Koli
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the applicant is entitled to an extension of time to file a memorandum of appeal.
- 3 Whether the delay was occasioned by the applicant or his advocate.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the appeal, as the judgment was delivered without notice to his advocates and the proceedings and judgment were not provided despite prompt request. The delay was not due to the applicant's or his advocate's fault. The court was satisfied that the intended appeal was arguable and not frivolous. Consequently, the court exercised its discretion to extend the time for filing the memorandum of appeal by 30 days from the date of the ruling.
Court Disposition
application allowed
Orders
- Time to file Memorandum of Appeal is extended by 30 days from the date of this ruling.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Miscellaneous Civil Application 224 of 2012
ANDREW MWANGI CHUI.................................................................. APPLCIANT
VERSUS
GREGORY OTING’A KOLI.............................................................. RESPONDENT
(Being an application for leave to file Memorandum of Appeal in respect of an intended appeal out of time from a judgment of the lower court at Nairobi (Hon. Winfrida B. Mokaya (SPM) delivered on the 7th day of September 2011 in Civil Case No.8652 of 2005 (Milimani)
RULING
Notice of Motion dated 17/4/2012 is brought under Order 38 rule 2 Order 42 rule 6 Order 50 rule 5 Section 79 G, 1A, 1B, 3A of Civil Procedure Act Orders sought (1) time to file Memorandum of Appeal be extended (2) stay of proceedings in CMCC No.8652 of 2005 Milimani be granted application based on grounds stated in the affidavit of Andrew Mwangi Chui the applicant. It is show that he is aggrieved by decision of the lower court delivered on 7/9/2011 and has instructed advocate to file appeal.
The advocate stated that according to record judgment was deferred several times on 4/5/2011, 26/5/2011, 8/6/2011 and on notice and that the judgment was eventually delivered on 7/9/2011 yet no notice had been served on the advocates. Therefore the applicant was not able to file appeal in good time. On 8th November 2011 a letter was sent requesting for certified proceedings and judgment which is exhibit AMC 1 (a) and (b). It was 2 months delay by the time the advocates came to know of delivery of judgment. The proceedings and judgment has not been provided up to date. The delay of filing appeal is beyond his and advocate’s control.
The appeal has arguable and high chances of success. The applicant gives undertaking for the due performance of the decree if the appeal is not successful.
Upon perusing the application and upon hearing submission of counsel I am satisfied that the delay in filing appeal within time is well explained and that it is not due to the fault of the applicant or his advocate. It is not for this court to consider the merits of the appeal but upon perusing the documents attached to the affidavit, it is clear the applicant has an arguable appeal which is not frivolous.
I therefore extend the time as prayed for a period of 30 days from today.
Costs of application shall be in the cause.
Dated and delivered this 3rd day of July, 2012.
J.N. KHAMINWA
JUDGE