[2016] KEHC 6603 (KLR)
The court found that although the appellant filed the appeal 25 days out of time, the delay was not inordinate given the circumstances, including the appellant's status as a litigant in person and the prompt application for proceedings and judgment. The period certified by the lower court for preparation and...
Source-derived case information.
- Citation
- [2016] KEHC 6603 (KLR)
- Parties
- Appellant: Benson Kamu Mutura; Respondent: James Murimi Kahinga
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 44 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application to Validate Appeal Filed Out of Time and Application to Strike Out Appeal
- Outcome
- Application to validate appeal filed out of time allowed; application to strike out appeal dismissed; costs of both applications awarded to the respondent.
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Kamu Mutura
Appellant
James Murimi Kahinga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Validate Appeal Filed Out of Time and Application to Strike Out Appeal
Legal Issues
- 1 Whether the appellant had good and sufficient cause for not filing the appeal within the prescribed time under section 79G of the Civil Procedure Act.
- 2 Whether the period certified by the lower court for preparation and delivery of proceedings and judgment should be excluded from the computation of time for filing the appeal.
- 3 Whether the delay of 25 days in filing the appeal was inordinate and justified the validation of the appeal.
Ratio Decidendi
The court found that although the appellant filed the appeal 25 days out of time, the delay was not inordinate given the circumstances, including the appellant's status as a litigant in person and the prompt application for proceedings and judgment. The period certified by the lower court for preparation and delivery of the proceedings and judgment was properly excluded from the computation of time. The court exercised its discretion under section 79G of the Civil Procedure Act to enlarge time for filing the appeal, deeming the appeal as having been filed in time. Consequently, the respondent's application to strike out the appeal for being filed out of time was dismissed.
Court Disposition
Application to validate appeal filed out of time allowed; application to strike out appeal dismissed; costs of both applications awarded to the respondent.
Orders
- Time for filing the appeal is enlarged; the appeal is deemed to have been filed in time.
- The respondent's application to strike out the appeal for incompetency is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CIVIL APPEAL NO 44 OF 2015
BENSON KAMU MUTURA.………….…………..……..….…APPELLANT
VERSUS
JAMES MURIMI KAHINGA…………..…………………….RESPONDENT
RULING
1. The appeal herein is against a decree passed on 10/10/2014. The memorandum of appeal was filed on 26/05/2015, out of the time for filing appeals prescribed by section 79G of the Civil Procedure Act, Cap 21. The Appellant has filed and served a record of appeal which contains a certificate of delay by the lower court to the effect that the Appellant applied for copies of proceedings and judgement on 13/10/2014 (that is 3 days after delivery of the judgement) and that the same were supplied to him on 01/04/2015 upon payment of the balance of the necessary court fees. The certificate does not state when (if at all) the Appellant was informed the proceedings and judgment were ready for collection. It is therefore just to assume that they were ready for collection on 01/04/2015.
2. By dint of section 79G aforesaid the Appellant’s appeal should have been filed within 30 days from 10/10/2014 - that is on or before 10/11/2014. However, again by dint of the same section, the period certified by the lower court for preparation and delivery to the Appellant of the proceedings and judgement, must be excluded – that is the period from 13/10/2014 to 01/04/2015, some 173 days. So, the Appellant had until 01/05/2015 to file his appeal. He filed it on 26th May 2015, some 25 days out of time.
3. Though this delay of 25 days is not specifically explained in the Appellant’s affidavit sworn in support of his notice of motion dated 31/07/2015seeking validation of his appeal which was filed out of time, I am satisfied that in the circumstances of this case that delay is not inordinate. Those circumstances include the fact that the Appellant has been acting in person and has already filed his record of appeal, which means that the appeal can be disposed of as soon as the original lower court record is received.
4. I am thus satisfied that the Appellant had good and sufficient cause for not filing his appeal in time. I will allow his application and enlarge time for filing his appeal, such that the appeal is now deemed to have been filed in time. It is so ordered.
5. By the same token I must refuse the Respondent’s application by notice of motion dated 27/07/2015 to strike out the appeal for incompetency on account of the same having been filed out of time. It is hereby dismissed.
6. Costs of both applications are awarded to the Respondent in the appeal. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 25TH DAY OF FEBRUARY 2016
H.P.G. WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 26TH DAY OF FEBRUARY 2016