[2014] KEHC 1415 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely, the late availability of typed proceedings. Since the application was unopposed and the interests of justice favored allowing the appeal to proceed, the court exercised its discretion to grant leave...
Source-derived case information.
- Citation
- [2014] KEHC 1415 (KLR)
- Parties
- Appellant: Damaris Nyambura Ngugi; Respondent: Francis Mutua Ngugi; Respondent: Joyce Nyokabi Ngugi; Respondent: Milkah Wanjiru Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 132 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time. Stay of certificate of confirmation granted pending appeal, subject to timely filing.
- Judges
- DN Musyoka
- Legal Topics
- Extension of Time, Succession Proceedings, Appeals Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Nyambura Ngugi
Appellant
Francis Mutua Ngugi
Respondent
Joyce Nyokabi Ngugi
Respondent
Milkah Wanjiru Ngugi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether leave should be granted to file an appeal out of time against the decision of the Chief Magistrate in succession cause number 246 of 2004.
- 2 Whether the delay in filing the appeal was justified by the late availability of typed proceedings.
- 3 Whether a stay of the certificate of confirmation should be granted pending appeal.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely, the late availability of typed proceedings. Since the application was unopposed and the interests of justice favored allowing the appeal to proceed, the court exercised its discretion to grant leave to file the appeal out of time. Additionally, to preserve the subject matter pending appeal, the court granted a stay of the certificate of confirmation issued in the succession cause, with the condition that the appeal must be filed within thirty days, failing which the stay would lapse.
Court Disposition
Application allowed. Leave granted to file appeal out of time. Stay of certificate of confirmation granted pending appeal, subject to timely filing.
Orders
- Applicant granted thirty (30) days to file and serve memorandum of appeal in respect of the impugned decision.
- Stay of the certificate of confirmation issued in Kiambu Senior Resident Magistrate court succession number 246 of 2004 on 7th May 2014 pending appeal.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
MIS. CAUSE NO. 132 OF 2014
DAMARIS NYAMBURA NGUGI………….………..………APPELLANT
VERUS
FRANCIS MUTUA NGUGI………………………....…1ST RESPONDENT
JOYCE NYOKABI NGUGI…………………..………....2ND RESPONDENT
MILKAH WANJIRU NGUGI……………………..……..3RD RESPONDENT
RULING
1. The Motion dated 17TH July 2014 asks me in the main to grant leave for the filing of an appeal out of time in respect of a decision of the Chief Magistrate in Kiambu Chief Magistrate Court succession cause number 246 of 2004. There are several other prayers.
2. The applicant in essence appears to say that typed copies of the proceedings were not availed to her on time hence the delay in filing the appeal.
3. The application is not opposed although there is evidence that it was served.
4. There is merit in the application and justice of the situation favours the granting of prayer 2 of the Motion. The other prayers should be argued within the proposed appeal.
5. The applicant is given thirty (30) days to file and serve memorandum of appeal in respect of the impugned decision. There shall be stay of the certificate of confirmation issued in Kiambu Senior Resident Magistrate court succession number 246 of 2004 on 7th May 2014 pending appeal. The latter order shall lapse if appeal is not filed within the period stated.
6. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 28th DAY OF November 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Gachiru advocate for the appellant