[2016] KEHC 554 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the appeal, which was due to the late supply of proceedings and judgment. There was no evidence of intentional delay or prejudice to the respondents, and the application was unopposed. Accordingly, the court exercised its discretion...
Source-derived case information.
- Citation
- [2016] KEHC 554 (KLR)
- Parties
- Applicant: Charles Mukuru Njeru; Respondent: Lawrence Miriti M'Rachi; Respondent: Julius Njeru M'Rithaa
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 56 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- FM Njoroge
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Delay in Receiving Judgment, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mukuru Njeru
Applicant
Lawrence Miriti M'Rachi
Respondent
Julius Njeru M'Rithaa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time from the judgment in Chuka SPMCC No. 36 of 2012.
- 2 Whether the delay in filing the appeal was justified by the late supply of proceedings and judgment.
- 3 Whether granting the application would prejudice the respondents.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the appeal, which was due to the late supply of proceedings and judgment. There was no evidence of intentional delay or prejudice to the respondents, and the application was unopposed. Accordingly, the court exercised its discretion to grant leave to appeal out of time, directing the applicant to file the appeal within 30 days. Costs were ordered to be in the cause.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant is granted leave to file an appeal from the judgment in Chuka SPMCC No. 36 of 2012.
- The applicant shall file the appeal within 30 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
MISC. CIVIL APPL. NO. 56 OF 2015
CHARLES MUKURU NJERU........................................APPLICANT
VERSUS
LAWRENCE MIRITI M'RACHI........................1ST RESPONDENT
JULIUS NJERU M'RITHAA............................2ND RESPONDENT
R U L I N G
1. This application is dated 03/08/2015 and seeks orders:-
1. THAT the Honourable Court be pleased to certify this application urgent and hear the same without delay owing to its urgent nature.
2. THAT the Honourable Court be pleased to grant the applicant leave to appeal from the Judgment in CHUKA SPMCC NO. 36 OF 2012 out of time.
3. THAT upon granting prayer No. 2 herein above, the Honourable Court do give the applicant time within which to file the appeal.
4. THAT costs of this application be in the cause.
2. The application is supported by the Affidavit of Charles Mukuru Njeru and has the following grounds:-
1. Judgment in this case was delivered by B.N. IRERI, the Acting Principal Magistrate on 29th May, 2015 in which the applicant lost.
2. The applicant applied to be supplied with the proceedings and judgment in the said CHUKA SPMCC NO. 36 OF 2012.
3. It was not until 29th July, 2015 that the proceedings and judgment were supplied to the applicant.
4. By the time the proceedings and judgment were being supplied to the applicant, time to appeal the said judgment by Acting Principal Magistrate B.N. IRERI had lapsed.
5. The applicant has already been supplied with the certificate of delay in the said CHUKA SPMCC NO. 36 OF 2012.
6. The delay in filing the appeal in CHUKA SPMCC NO. 36 OF 2012 was not intentional but caused by delay in being supplied with the proceedings and judgment.
7. It is only just and fair that the prayers sought in this application be allowed.
8. No prejudice will be occasioned to the respondents if the application herein is allowed.
3. When the application came up for directions on 10/11/2015, there was evidence that the 2nd defendant had been properly served. The 1st defendant was in Court and made indications that he was not keen on responding to the application.
4. In the circumstances, I find that the application is not opposed.
5. It is allowed with the effect that the applicant is granted leave to file an appeal from the judgment in Chuka SPMCC No. 36 of 2012.
6. The applicant should file the apposite appeal within 30 days.
7. Costs shall be in the cause.
8. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 10TH DAY OF NOVEMBER, 2016 IN THE PRESNCE OF :-
CA: DANIEL /JAMES
Nyamu Nyaga for the Applicant
P.M. NJOROGE
JUDGE