[2009] KEHC 3117 (KLR)
The court found that the applicant's claim of lack of notice of the judgment was untrue, as the record showed the parties were present when judgment was delivered. The alleged delay in obtaining proceedings was not substantiated by a certificate of delay. However, the court noted that the trial court had twice...
Source-derived case information.
- Citation
- [2009] KEHC 3117 (KLR)
- Parties
- Applicant: Douglas Onyancha; Applicant: Hilary Onyancha; Applicant: Kevin Onyancha (suing through their next friend); Applicant: Naomi Onyancha; Respondent: Jane Kemunto Onyancha
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 133 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed with costs to the respondent
- Judges
- AO Muchelule
- Legal Topics
- Extension of Time, Appeal Out of Time, Good and Sufficient Cause
- 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
Douglas Onyancha
Applicant
Hilary Onyancha
Applicant
Kevin Onyancha (suing through their next friend)
Applicant
Naomi Onyancha
Applicant
Jane Kemunto Onyancha
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for failing to file the appeal within the prescribed time.
- 2 Whether the absence of notice of judgment or delay in obtaining proceedings constitutes sufficient reason for extension of time.
Ratio Decidendi
The court found that the applicant's claim of lack of notice of the judgment was untrue, as the record showed the parties were present when judgment was delivered. The alleged delay in obtaining proceedings was not substantiated by a certificate of delay. However, the court noted that the trial court had twice failed to deliver judgment on scheduled dates and did not ensure counsel were present when judgment was finally delivered. In the interest of justice and to avoid punishing the applicant for procedural lapses partly attributable to the court, the application for extension of time to file the appeal was allowed, but the respondent was awarded costs of the application.
Court Disposition
application allowed with costs to the respondent
Orders
- The applicant is granted leave to file the appeal out of time.
- The respondent is awarded costs of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Miscellaneous Civil Application 133 of 2008
1. DOUGLAS ONYANCHA ..........................................................................
2. HILARY ONYANCHA............................................... ......SUING THRO'
3. KEVIN ONYANCHA THEIR NEXT FRIEND....... …… APPLICANT
4. NAOMI ONYANCHA ................................................FRANCIS KIBAKI
VERSUS
JANE KEMUNTO ONYANCHA …………………….. RESPONDENT
RULING
The Applicant seeks to be allowed to file his appeal out of time. It is appeal from the judgment of a subordinate court at Nyamira dated 11th June, 2008. The application has been bought under Order 41 rule 5 of the Civil Procedure Rules and sections 3A and 95 of the Civil Procedure Act.
In the Grounds and Supporting Affidavit, the Applicant is saying that his case was dismissed on 11th June 2008 without notice to him. He then instructed his Advocate on 16th June 2008 to appeal. The Advocate is Samson Mauti Sagwe who said the he applied for certified copy of judgment and proceedings and paid Kshs.200/= as deposit for typing on 19th September, 2008 he received only the proceedings. Judgment was not given to him. By this date the time of the filing of the appeal had passed. Counsel swore that the Applicant had an appeal with high chances of success.
The Respondent filed a Replying Affidavit in which he swore that the parties had notice of the judgment and therefore that there was no reason for the delay. She swore that the Applicant had not demonstrated that this appeal had high chances of success.
Since the judgment was not annexed to the Affidavit in support of the application it may not be easy to assess the chances the appeal may have. I have looked at the Memorandum of Appeal, but without the judgment the court may not conclude that the trial magistrate erred or did not in reaching the decision to dismiss the suit with costs.
Under Order 79G of the Civil Procedure Act the appeal was supposed to be brought within thirty days of the judgment. The section provides that such an appeal may be admitted out of time if the Applicant satisfies the court that he had good and sufficient cause for not filing the appeal in time. In the case of Mugo and Others vs. Wanjiru and Another [1970] EA 481 it was held that normally sufficient reason for an extension of time must relate to the inability or failure to take the particular step. Reading through the annexed proceedings the defence closed its case on
2nd April 2008. The parties and the Counsel were present. The court reserved judgment to 30th April, 2008. On that day the parties were present but the Advocates not. Judgment was not ready and was adjourned to 14th May, 2008. On the day the parties were present without their advocates. They were asked to come on the 11th June 2008. There is no dispute that on that day judgment was delivered. The parties were present without their advocates. It follows that when Mr. Sagwe swore that his client had no notice of the judgment that is not true. The other reason given by Counsel in his Affidavit was that there was delay in the processing of proceedings. I would have expected him to avail a Certificate of Delay from the subordinate court. Once again, I find his allegation not supported.
In short, I find no merit in the application. However, considering that twice the trial court did not deliver judgment on time and when ready did not ensure that Counsel were present, and in order that the Applicant is not punished and denied his day in court, I allow the application but ask the Respondent be paid costs of the same.
Dated, Signed and Deliveredat KISII this 16th day of June, 2009
A.O. MUCHELULE
JUDGE
16/6/2009
Before A. O. Muchelule Judge
Mongare c/c
Mr. Sagwe for Applicant
Court: Ruling in open court.
A.O. MUCHELULE
JUDGE