[2006] KEHC 1073 (KLR)
The court found that the applicant had adequately explained the delay in filing the appeal, which was primarily due to the late supply of proceedings and judgment necessary for preparing the memorandum of appeal. The court distinguished the authorities cited by the respondent, noting that the applicant was not...
Source-derived case information.
- Citation
- [2006] KEHC 1073 (KLR)
- Parties
- Applicant: Ann Mukami Muchiri; Respondent: David Kariuki Mundia
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 112 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application granted
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals Out of Time, Discretion of Court, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Ann Mukami Muchiri
Applicant
David Kariuki Mundia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the High Court should exercise its discretion to grant leave to file the appeal out of time.
Ratio Decidendi
The court found that the applicant had adequately explained the delay in filing the appeal, which was primarily due to the late supply of proceedings and judgment necessary for preparing the memorandum of appeal. The court distinguished the authorities cited by the respondent, noting that the applicant was not seeking exclusion of time under section 79G but rather leave to file out of time. The court was satisfied that the delay was not inordinate, the appeal was arguable, and no prejudice would be suffered by the respondent. Accordingly, the court exercised its discretion to grant the application for extension of time.
Court Disposition
application granted
Orders
- The applicant shall file the appeal within 10 days from the date of the ruling.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc Appli 112 of 2005
ANN MUKAMI MUCHIRI …………………….............................................…………… APPLICANT
VERSUS
DAVID KARIUKI MUNDIA ………...........................................……………………… DEFENDANT
R U L I N G
Ann Mukami Muchiri, the applicant herein seeks leave of this court to file her intended appeal out of time against a judgment delivered on 20th July 2005 in Nyeri CMCC 853 of 2003. The application was filed on 28th September 2005. The applicant explains that the delay in filing the appeal was caused by the delay in getting copies of typed proceedings and judgment. An affidavit from the applicants advocate annexes a Reissue of Certificate of Delay which shows that the proceedings and decree were not supplied until 3rd October 2005. Relying on the cases of (1) Leo Silla Mutiso v/s Rose Hellen Wangari Mwangi (Nbi) 255 of 1997 and (2) Joyce Wamuhu & 2 others v/s Ruth Kalekye & Another (Nbi) Civil Appeal No. 304 of 2004, Mr. Ngugi urged the court to exercise its discretion in the applicant’s favour since the delay has been adequately explained.
Mr. Mugambi who appeared for the Respondent opposes the application. Relying on the case of Kyuma v/s Kyiema (1988) KLR 185 and Wanjau Muraya (1983) KLR 276, Mr. Mugambi submitted that the reasons given for the delay in filing the appeal could not exonerate the applicant because there was no requirement that the memorandum of appeal could only be filed together with the order or decree.
I have considered this application, the submissions of counsels and the authorities cited.
I find that the case of Kyuma v/s Kyema (Supra) which was relied upon by Mr. Mugambi is distinguishable as the circumstances were different in that the appellant had filed an appeal and sought to apply the provisions of section 79G of the Civil Procedure Act which provides for the exclusion of time required for the preparation and delivery to the appellant a copy of the decree or order appealed from in computing the period of 30 days provided for filing an appeal. In the instant case the applicant has come to this court seeking leave to file his appeal out of time. In other words the applicant concedes that the period for filing appeal has already expired.
Although she has annexed a certificate of delay she is not invoking the provisions of section 79 G of Civil Procedure Act to have that period excluded but is merely using the certificate of delay to explain the reasons why she did not file her appeal within time. The reason was that her advocates required the proceedings and judgment to enable them prepare the memorandum of appeal. A request for the documents was made two days after the judgment was delivered but same were not supplied until 21st September 2005. Thereafter this application was brought 7 days later.
Section 79G of the Civil Procedure Act and order XLIX rule 5 of the Civil Procedure Rules provides discretion to the High Court to extend time for filing an appeal.
The authority of Leo Sila Mutiso v/s Rose Hellen Wangari Mwangi (supra) which was cited by Mr. Ngugi provides how such a discretion is to be exercised.
“It is now well settled that the decision whether or not toextend the time for appealing is essentially discretionary.
It is also well settled that in general the matters which this
court takes into account in deciding whether to grant anextension of time are: first the length of delay, secondly the reason for delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly the degree of prejudice to the Respondent if the application is granted.”
The applicant has adequately explained the delay of about two months. A draft memo of appeal has been exhibited and it is evident that the appeal is arguable. I do not see any prejudice that the Respondent is likely to suffer.
Having considered all the relevant issues, I am satisfied that this is an appropriate case in which this court should exercise its discretion in the applicant’s favour.
I do therefore grant the application and order that the applicant shall file his appeal within 10 days from the date hereof.
Costs shall be in the cause. Orders accordingly.
Dated this 26th day of October 2006.
H. M. OKWENGU
JUDGE