[2021] KEHC 5555 (KLR)
The court found that although the explanation for delay—late instructions to the advocates—was not a good reason, the delay was not inordinate and justice could still be served. The application was unopposed, and the respondent would not suffer prejudice. Therefore, the court exercised its discretion to allow the...
Source-derived case information.
- Citation
- [2021] KEHC 5555 (KLR)
- Parties
- Appellant: Daneva Heavy Trucks; Appellant: Rashid K. Mugonza; Respondent: Chrispine Otieno
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E007 of 2021
- Procedural Posture
- Civil Appeal / Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time. Costs awarded to respondent.
- Judges
- RE Aburili
- Legal Topics
- Extension of Time, Appeals Out of Time, Delay in Filing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daneva Heavy Trucks
Appellant
Rashid K. Mugonza
Appellant
Chrispine Otieno
Respondent
Procedural Posture
Civil Appeal / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal.
- 3 Whether the respondent is entitled to costs of the application.
Ratio Decidendi
The court found that although the explanation for delay—late instructions to the advocates—was not a good reason, the delay was not inordinate and justice could still be served. The application was unopposed, and the respondent would not suffer prejudice. Therefore, the court exercised its discretion to allow the application and granted the applicants leave to file the appeal out of time, subject to payment of costs to the respondent.
Court Disposition
Application allowed. Leave granted to file appeal out of time. Costs awarded to respondent.
Orders
- Time for filing of an appeal out of time is extended by ten days from the date of this ruling.
- The respondent shall have costs of this application assessed at Kshs. 6,000 to be paid within 14 days, failing which execution may issue.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CIVIL APPEAL NO. E007 OF 2021
CORAM: HON. R.E. ABURILI, J
DANEVA HEAVY TRUCKS............................................................................1ST APPELLANT
RASHID K. MUGONZA..................................................................................2ND APPELLANT
VERSUS
CHRISPINE OTIENO...........................................................................................RESPONDENT
(An Appeal arising from Judgment and Order in Ukwala PM’s Court Civil Suit No. 28 of 2019
delivered on 10. 03. 2021 by Hon. C.N. Sindani, Principal Magistrate)
RULING
1. The applicants Daneva Heavy Trucks and Rashid K.Mugonza seek leave of court to file an appeal out of time from the judgment and decree in Ukwala PMCC 28/2019 delivered on 10/3/2021.
2. The delay in filing the intended appeal has been explained that the advocates received instructions from the clients late.
3. That is no good reason for the delay as the case does not belong to the advocate. However as the delay is not too inordinate and justice can still be served despite the delay of a few days, and as the application is not opposed by the Respondents, I hereby allow the application dated 14/4/2021 and grant the prayers sought, extending time for filing of an appeal out of time by ten days from the date hereof.
4. The Respondent shall have costs of this application assessed at Kshs. 6,000/= to be paid within the next 14 days of today in default he is at liberty to execute for recovery. This file is closed.
5. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF JUNE 2021
R.E. ABURILI
JUDGE