[2019] KEHC 6863 (KLR)
The court found that although the time to file the appeal had lapsed, it retains jurisdiction to grant leave to appeal out of time where a party provides a plausible explanation for the delay. The applicant’s reasons for delay—primarily the late supply of proceedings and the certified copy of the verdict—were deemed...
Source-derived case information.
- Citation
- [2019] KEHC 6863 (KLR)
- Parties
- Applicant: Domian Mark Kondoa; Respondent: Irene Lumumba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 120 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- SN Riechi
- Legal Topics
- Extension of Time, Leave to Appeal, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Domian Mark Kondoa
Applicant
Irene Lumumba
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 file an appeal out of time.
- 2 Whether the delay in filing the appeal was excusable.
Ratio Decidendi
The court found that although the time to file the appeal had lapsed, it retains jurisdiction to grant leave to appeal out of time where a party provides a plausible explanation for the delay. The applicant’s reasons for delay—primarily the late supply of proceedings and the certified copy of the verdict—were deemed plausible and not inordinate. The court exercised its discretion in favour of the applicant, finding that the delay was excusable and that justice would be served by allowing the intended appeal to proceed.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file the intended appeal out of time.
- The applicant shall file the intended appeal within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL MISC. APPL. CASE NO. 120 OF 2018.
DOMIAN MARK KONDOA.............................................APPLICANT
VERSUS
IRENE LUMUMBA........................................................RESPONDENT
RULING
This is an application dated 23. 7.2018 by the applicant brought under Section 1, 1a, 1b, 3, 3a, 63e and Section 79g of the Civil Procedure Act Chapter 21 of the Laws of Kenya and all the other enabling Provisions and powers of the Law. Seeking orders that;
1. The applicant be granted leave to file his intended appeal out of time.
2. The costs and incidentals in this application to abide by the result and out come of the intended appeal or as the court may order.
The application premised on the ground that the applicant was aggrieved by the decision of the Deputy Commissioner’s verdict dated 2. 5.2008; that he sought for the proceedings and certified copy of verdict which was supplied after the appeal period had expired and that the verdict related to validity of a customary marriage and lack of locus of Respondent to celebrate another marriage under the marriage Act, and that the delay was not inordinate and is excusable.
The Respondent Irene Lumumba opposed the application and filed Replying Affidavit. Respondent opposed the application on the ground that no good reason has been shown for not filing application within time and that the intended appeal is hopeless and frivolous.
I have considered the application and submissions. Although it is true that time to file the appeal had lapsed, this court has jurisdiction in appropriate cases grant leave to a party who intends to appeal out of time. Upon this party giving good explanation for delay. The reasons advanced by the applicant for this delay are plausible.
I allow the application and direct the applicant to file the intended appeal within 30 days from todays date.
Dated and Delivered at Bungoma this 30th day of May 2019.
S.N. RIECHI
JUDGE