[2018] KEHC 5517 (KLR)
The court found that the applicants failed to demonstrate sufficient cause for the delay in filing the appeal. The explanation provided, namely waiting for typed proceedings and judgment, was unconvincing because the application for proceedings was made in 2016 and no further steps were taken for a significant...
Source-derived case information.
- Citation
- [2018] KEHC 5517 (KLR)
- Parties
- Applicant: David Nyabuto Amboga; Applicant: Paskalia Moraa Amboga; Respondent: Gusii Mwalimu Savings and Credit Co-operative Society Ltd
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 20 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application dismissed with costs
- Judges
- DAS Majanja
- Legal Topics
- Extension of Time, Appeal Out of Time, Sufficient Cause, Delay in Filing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
David Nyabuto Amboga
Applicant
Paskalia Moraa Amboga
Applicant
Gusii Mwalimu Savings and Credit Co-operative Society Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicants have shown sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the delay in filing the appeal is inordinate and prejudicial to the respondent.
Ratio Decidendi
The court found that the applicants failed to demonstrate sufficient cause for the delay in filing the appeal. The explanation provided, namely waiting for typed proceedings and judgment, was unconvincing because the application for proceedings was made in 2016 and no further steps were taken for a significant period. The delay of over two and a half years was deemed inordinate, and the court held that reviving the matter would prejudice the respondent. Consequently, the application for extension of time was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file appeal out of time is dismissed.
- The applicants shall pay costs assessed at Kshs. 5000 to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
MISC CIVIL APPL. NO. 20 OF 2018
IN THE MATTER OF EXTENSION OF
TIMETO FILE APPEAL OUT OF TIME
BETWEEN
DAVID NYABUTO AMBOGA
PASKALIA MORAA AMBOGA........APPLICANTS
AND
GUSII MWALIMU SAVINGS AND CREDIT
CO-OPERATIVE SOCIETY LTD.....RESPONDENT
RULING
1. The applicant seeks this Court’s discretion to condone the filing of the appeal against a Judgment that was delivered on 27th November 2015. The application before me was filed on 9th March 2018. The reason advanced for the delay is that the applicant was waiting for typed proceedings and judgment to order to lodge the appeal.
2. Under Section 79G of the Civil Procedure Act, the applicant must show sufficient cause for failing to lodge an appeal. An appeal is filed by way of memorandum of appeal within 30 days from the date of Judgment. As the Respondent points out, it is now over 2 ½ years since the Judgment was delivered. The explanation given lacks merit as the application for payment of proceedings was made in 2016 and even then nothing was done.
3. The delay is inordinate and the matter must now be left to rest. The Respondent would be prejudiced by its revival. The application is dismissed with costs assessed at Kshs. 5000/=.
D.S Majanja
Judge
25/6/2018
[Ruling read and delivered in open Court]
D.S Majanja
Judge
25/6/2018