[2021] KEHC 3407 (KLR)
The court found that the applicant's explanation for the delay—late receipt of the council's decision—was not controverted by the respondents and was plausible. The court was satisfied that the applicant had demonstrated sufficient cause for the delay and was therefore entitled to the court's discretion to extend...
Source-derived case information.
- Citation
- [2021] KEHC 3407 (KLR)
- Parties
- Applicant: Bero. R. Ogora (Suing as administrator and personal representative of the estate of the late Joanina Njeri Bero); Respondent: Medical Practitioners and Dentists Council; Respondent: Dr. F. K. Mwongera; Respondent: The Nairobi Hospital
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application E113 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Leave to Appeal, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bero. R. Ogora (Suing as administrator and personal representative of the estate of the late Joanina Njeri Bero)
Applicant
Medical Practitioners and Dentists Council
Respondent
Dr. F. K. Mwongera
Respondent
The Nairobi Hospital
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in filing the appeal within the statutory period.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time.
Ratio Decidendi
The court found that the applicant's explanation for the delay—late receipt of the council's decision—was not controverted by the respondents and was plausible. The court was satisfied that the applicant had demonstrated sufficient cause for the delay and was therefore entitled to the court's discretion to extend time. The motion for leave to appeal out of time was found to have merit and was allowed, granting the applicant 10 days from the date of the ruling to file the appeal.
Court Disposition
application allowed
Orders
- The applicant is granted leave of 10 days from the date of this ruling to file an appeal out of time.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL MISC. APP. NO. E113 OF 2021
BERO. R. OGORA (Suing as administrator and personal
representation of the estate of the
lateJOANINA NJERI BERO..............................................APPLICANT
VERSUS
MEDICAL PRACTITIONERS AND
DENTISTS COUNCIL...............................................1ST RESPONDENT
DR. F. K. MWONGERA.......................................... 2ND RESPONDENT
THE NAIROBI HOSPITAL.................................... 3RD RESPONDENT
RULING
1) The subject matter of this ruling is the motion dated 5th February 2021 in which the applicant seeks for leave to appeal out of time. The motion is supported by the affidavit sworn by the applicant. The 2nd and 3rd respondents filed grounds of opposition and a replying affidavit they each swore to resist the application.
2) I have considered the grounds stated on the face of the motion plus the facts deponed in the rival affidavits. I have also considered the grounds of opposition and the rival oral submissions. The main ground put forward by the applicant as the reason which delayed him from filing the appeal within the time specified by law is that he was supplied with the ruling/decision of the Medical Practitioners and Dentists Council after the lapse of 30 days required to appeal. The applicant specifically stated that he actually received the same by email on 26th February, 2021.
3) The 2nd and 3rd respondents filed replying affidavits opposing the application arguing that the same is based on irrelevant provisions of the law. It is also argued that the applicant has deliberately attempted to mislead this court by alleging that the council (1st respondent) had no jurisdiction to determine issues touching on negligence.
4) Having considered the rival arguments, it is clear that the respondents have not controverted the applicant’s assertion that he was supplied with the council’s decision on 26th February 2021 by which time the period to appeal had lapsed.
5) I am therefore convinced that the ground relied upon by the applicant is plausible therefore he is entitled to benefit from the discretion of this court.
6) In the end, I find the motion dated 5th February 2021 to be with merit hence it is allowed. Consequently, the applicant is granted leave of 10 days from the date of this ruling to file an appeal out of time. A fair order on costs is to order, which I hereby do, that each party meets its own costs.
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 17th day of September, 2021.
…….….…………….
J. K. SERGON
JUDGE
In the presence of:
…………………………………. for the Plaintiff
…………………………………. for the Defendant