[2018] KEHC 6719 (KLR)
The court found that the applicants provided a plausible explanation for the delay in filing the appeal, namely, reliance on a public holiday which they believed extended the statutory period. The application for extension of time was filed immediately after the error was discovered, indicating no undue delay....
Source-derived case information.
- Citation
- [2018] KEHC 6719 (KLR)
- Parties
- Applicant: Bidii Muimi; Applicant: Boniface Kinuva Mutungu; Respondent: Patricia Munanie Mutemi; Respondent: Charles Kyalo (Suing on behalf of Oliver Ngomango (Deceased))
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 4 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- LN Mutende
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bidii Muimi
Applicant
Boniface Kinuva Mutungu
Applicant
Patricia Munanie Mutemi
Respondent
Charles Kyalo (Suing on behalf of Oliver Ngomango (Deceased))
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was excusable under the law.
- 3 Whether the respondents would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicants provided a plausible explanation for the delay in filing the appeal, namely, reliance on a public holiday which they believed extended the statutory period. The application for extension of time was filed immediately after the error was discovered, indicating no undue delay. Furthermore, the respondents had already received partial payment and had compromised on a stay of execution, demonstrating no prejudice would be suffered if the extension was granted. In the interest of justice, the court exercised its discretion to enlarge time and deemed the appeal as filed within time.
Court Disposition
application allowed
Orders
- Leave is granted to the applicants to file the appeal out of time.
- High Court Civil Appeal No. 34 of 2016 is deemed to have been filed within time.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL MISC. APPLICATION NO. 4 OF 2017
BIDII MUIMI..............................................................................1ST APPLICANT
BONIFACE KINUVA MUTUNGU..........................................2ND APPLICANT
VERSUS
PATRICIA MUNANIE MUTEMI.........................................1ST RESPONDENT
CHARLES KYALO(Suing on behalf
of OLIVER NGOMANGO(Deceased).................................2ND RESPONDENT
R U L I N G
1. By a Notice of Motion dated the 15thday of February, 2017the Applicants who have described themselves as Appellants seek orders as follows:
(a) That this Honourable Court be pleased to grant the intended Appellant leave to file a Memorandum of Appeal as per the attached draft against the decision and Judgment of Honourable Kimtai dated the 16th August, 2016 and Record of Appeal out of time and/or that time for filing and serving the same be extended.
(b) That in the alternative leave to file a Memorandum of Appeal as per the attached filed Appeal to operate retrospectively to the said filed Appeal Number 34 of 2016.
(c) That this Honourable Court be pleased to give such orders and directions as it may deem fit and just.
2. The application is premised on grounds that the delay in filing of the Appeal was occasioned by the insurers, a factor that was beyond their control. That the Appeal has a high chance of succeeding as the General Damages awarded are inordinately high since the trial Court failed to take into account the pleadings and submissions; the Appeal No. 34 of 2016 was filed one (1) day after the statutory time under the mistaken opinion that the Public Holiday of 12th September, 2016accorded them more time and the Respondents shall suffer no prejudice if the order sought is granted. An affidavit in support of the application was deponed by Dorry Wamugo Advocatewho averred that after the Judgment was delivered on the 16thday of August, 2016they informed Britam General Insuranceabout the decision and the communication of the intention to appeal reached them on the 15th September, 2016. They filed the Appeal a day after the statutory time under a mistaken opinion that 12th September, 2016being Idd Ul Adhawould not be counted.
3. The Respondents filed Grounds of Opposition arguing that the application was an afterthought and unmeritorious.
4. The application was canvassed by way of written submissions that I have taken into consideration.
5. Time within which an Appeal should be filed in Civil Cases is provided for in Section 79Gof the Civil Procedure Actthat provides that:
“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 time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
6. The Supreme Court considered circumstances that should be looked at positively in exercising the discretion to extend time in the case of Nicholas Kiptoo arap Korir Salat vs. Independent Electoral and Boundaries Commission and 8 Others (2014) eKLRthus:
“– Whether there is reasonable reason
for delay.
- Whether there will be any prejudice suffered by the Respondents if the extension is granted.
- Whether the application is brought without undue delay.”
7. The Memorandum of Appeal in High Court Civil Appeal No. 34 of 2016was filed on the 19th September, 2016. The Judgment in the Lower Court was delivered on the 16th August, 2016. The explanation given is that there was a Public Holiday in the course of the month and it was believed that the days would be taken into consideration. This was indeed a plausible reason.
8. Looking at what transpired after the Appeal was filed, an application for stay of execution was also filed. The application was compromised by the consent of both parties. The Respondents were paid Kshs. 500,000/=.Parties herein were desirous to have the matter disposed of expeditiously. Therefore the Respondents will not suffer an injustice. In the circumstance it will be in the interest of justice to have the time enlarged. The application was filed immediately the error was pointed out. There was no delay in filing the same.
9. In the premises I allow the application by granting the leave sought. The Appeal No. 34 of 2016be and is hereby deemed to have been filed within time.
10. Costs shall abide the outcome of the Appeal.
11. It is so ordered.
Dated, Signed and Delivered at Kitui this 19th day of April, 2018.
L. N. MUTENDE
JUDGE