[2004] KEHC 1226 (KLR)
The court found that although the applicant delayed by 9 days in filing the application for leave to appeal out of time, this delay was not inordinate and was satisfactorily explained by the late issuance of the order. The subsequent two-year delay in prosecuting the application was due to counsel's mistaken belief...
Source-derived case information.
- Citation
- [2004] KEHC 1226 (KLR)
- Parties
- Applicant: Benedict Wakaba Kihiu; Respondent: Stephen Karuu Maina; Respondent: Josphat Njuguna Mugo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1052 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on 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 Counsel, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedict Wakaba Kihiu
Applicant
Stephen Karuu Maina
Respondent
Josphat Njuguna Mugo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for delay in filing the appeal out of time.
- 2 Whether the mistake of counsel in prosecuting the appeal in the wrong forum should be visited upon the applicant.
- 3 Whether the respondent would suffer prejudice if leave to appeal out of time is granted.
Ratio Decidendi
The court found that although the applicant delayed by 9 days in filing the application for leave to appeal out of time, this delay was not inordinate and was satisfactorily explained by the late issuance of the order. The subsequent two-year delay in prosecuting the application was due to counsel's mistaken belief that the appeal was properly before the Court of Appeal. The court held that this mistake should not be visited upon the applicant, particularly given the sensitive nature of the land dispute and the lack of serious prejudice to the respondent. Therefore, the court exercised its discretion to allow the application for leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- Prayers 1 and 2 of the application dated 9th September, 2002 are allowed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS APPLICATION NO 1052 OF 2002
BENEDICT WAKABA KIHIU …………………………… APPLICANT
VERSUS
STEPHEN KARUU MAINA )
JOSPHAT NJUGUNA MUGO ) ……………………….. RESPONDENT
RULING
This is an application for leave to file appeal out of time brought under Section 79 G of the Civil Procedure Act, Cap 21, which states as follows:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, 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 a copy of the decree or order:
Provided that an appeal may be admitted out of tim e if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
Judgment in this case was delivered on 29th July, 2002 and the applicant promptly applied for a copy of the Order on 30th July, 2002. This was made available to the Applicant on 31st August, 2002, and he filed this application within 9 days thereafter.
Although he should have filed a Certificate from the Registrar to show that the issue of the Order was delayed, I am satisfied that the application was filed expeditiously – within only 9 days of the expiry of time to file the Memorandum of Appeal. This delay was not inordinate. However, this application was not pursued until after two years because, as Counsel put it, he proceeded with the prosecution of the appeal in the Court of Appeal in the mistaken belief that the appeal was on time and that no leave was required. Needless to say, the Court of Appeal struck it out as being incompetent, and he now returns to the High Court to prosecute his application for enlargement of time and leave.
Clearly, Counsel made a mistake in not prosecuting this application for some two years, although I cannot fault him for filing it late by only 9 days. As this is a sensitive land matter, I do not think his mistake should be visited upon his client who I believe should have every opportunity to be heard. I have read the Replying Affidavit and do not see how the Respondent will be so seriously prejudiced as to deny the Applicant here the opportunity to be heard.
Accordingly, I will allow prayers 1 and 2 of the application dated 9th September, 2002. Costs shall be in the cause.
Dated and delivered at Nairobi this 10th December, 2004.
ALNASHIR VISRAM
JUDGE