[2019] KEHC 1127 (KLR)
The court found that the applicant had established sufficient grounds for the equitable remedy of extension of time to appeal out of time. The applicant's willingness to provide security for the due performance of the decree and the absence of undue delay were persuasive. The court applied the principles set out by...
Source-derived case information.
- Citation
- [2019] KEHC 1127 (KLR)
- Parties
- Applicant: Daniel Njogu; Respondent: Francis Njogu Njihia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 366 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Exercise of Discretion, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Njogu
Applicant
Francis Njogu Njihia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has established sufficient grounds for extension of time to file an appeal out of time.
- 2 Whether the applicant's offer to provide security for due performance justifies the grant of leave.
- 3 Whether the delay in filing the appeal has been reasonably explained.
Ratio Decidendi
The court found that the applicant had established sufficient grounds for the equitable remedy of extension of time to appeal out of time. The applicant's willingness to provide security for the due performance of the decree and the absence of undue delay were persuasive. The court applied the principles set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v. IEBC, emphasizing that extension of time is discretionary and must be based on a satisfactory explanation for the delay and consideration of potential prejudice. The court concluded that the applicant deserved to be heard on appeal and that justice would be served by granting the application, subject to the condition that...
Court Disposition
application allowed with conditions
Orders
- Leave is granted to the applicant to appeal out of time.
- The Notice of Appeal and Memorandum of Appeal annexed to the application are deemed duly filed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS APPLICATION NO. 366 OF 2019
DANIEL NJOGU.................................................APPLICANT
VERSUS
FRANCIS NJOGU NJIHIA............................RESPONDENT
RULING
This is an application by way of Notice of Motion under Sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 1 of the Civil Procedure Rules, for orders that leave be granted to appeal out of time and that the Notice of Appeal and Memorandum of Appeal annexed to the application be deemed to have been filed. The grounds for seeking the said orders appear on the face of the application alongside a supporting affidavit sworn by the applicant.
The application is opposed and there is a replying affidavit sworn by the respondent. Both parties have also filed submissions and cited several authorities which I have considered.
The ruling prompting the application was delivered on 13th February, 2019 in which the lower court found that the applicant did not offer proper explanation as to why a defence was not filed in good time. The applicant was also faulted for not applying to cross examine the process server. I have related the application to the Memorandum of Appeal, and the fact that the orders sought call for the exercise of the court’s discretion.
Where an applicant offers security for due performance of the decree that may be issued against him, such a party should not be driven from the seat of judgment without a hearing. I say so because, whereas the respondent has a judgment in his favour, here is an applicant who wishes to be heard and exercise his right of an appeal.
The applicant has offered to post security as may be determined by the court. I am guided by several authorities as cited but more particularly, the decision of the Supreme Court in Application No. 16 of 2014 Nicholas Kiptoo Arap Korir Salat vs. The independent Electoral and Boundaries Commission and 7 others. In that case the court stated as follows,
“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:
1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
Applying the principles set out in that decision, the applicant has established that the equitable remedy to extend time is deserving.
Accordingly I allow the application on condition that, the applicant deposits the entire decretal sum in an interest earning account in the joint names of the advocates for the parties within 30 days from the date hereof.
The costs shall abide by the decision of the appeal.
Dated, signed and delivered at Nairobi this 5th Day of December, 2019.
A. MBOGHOLI MSAGHA
JUDGE