[2005] KEHC 1203 (KLR)
The court held that none of the reasons cited by the applicant for the delay—namely, the alleged vagueness of the ruling, the absence of an explicit right of appeal from the lower court, and being given a mention date—constituted good and sufficient cause as required by Section 79G of the Civil Procedure Act. The...
Source-derived case information.
- Citation
- [2005] KEHC 1203 (KLR)
- Parties
- Applicant: Emmah Njeri Gatagia; Respondent: Grace Njeri Waganju
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 829 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Good and Sufficient Cause, Civil Procedure Act Section 79g
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmah Njeri Gatagia
Applicant
Grace Njeri Waganju
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for failing to file the appeal within the statutory period.
- 2 Whether leave to file an appeal out of time should be granted under Section 79G of the Civil Procedure Act.
Ratio Decidendi
The court held that none of the reasons cited by the applicant for the delay—namely, the alleged vagueness of the ruling, the absence of an explicit right of appeal from the lower court, and being given a mention date—constituted good and sufficient cause as required by Section 79G of the Civil Procedure Act. The right to appeal arises from statute, not from the lower court's pronouncement. The delay of 15 months was excessive and unexplained by any valid legal ground. Consequently, the court exercised its discretion to refuse the extension of time and dismissed the application with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application dated 28th June, 2004 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Misc Civ Appli 829 of 2004
EMMAH NJERI GATAGIA …………………………..……...………. APPLICANT VERSUS GRACE NJERI WAGANJU ……………………………....………. RESPONDENT
RULING
In this application dated 28th June, 2004, brought under Order 49 Rule 5, and Sections 79 G and 3 A of the Civil Procedure Act, the Applicant seeks leave to file appeal out of time.
Judgment in the lower court was delivered on 27th March, 2003. This application was filed on 29th June, 2004, some 15 months past the due date. The Applicant’s reasons for not filing the Memorandum of Appeal in time, that is within 30 days of the Judgment, are that the ruling was “vague”; that he was not given the right of appeal by the lower court, that instead the lower court gave him a “mention date”; and that the appeal is meritorious.
Section 79 G of Cap 21 under which the application is made provides as follows:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
Now, the operative words, which guide the Court in the exercise of its discretion to admit an appeal out of time, are “good and sufficient cause” in the proviso to Section 79 G. So, has the applicant here demonstrated good and sufficient cause for not filing the appeal in time? Not, in my view.
None of the reasons cited for the delay here constitute “good and sufficient cause”. If the Ruling was “vague” that in itself was a ground of appeal. The applicant’s right to appeal arise from the statute, not from the Court. That certainly is not a good excuse for a 15 month delay.
Accordingly, and for reason outlined, I am unable to grant leave to file appeal out of time, and I dismiss the application dated 28th June, 2004 with costs to the Respondent.
Dated and delivered at Nairobi this 9th day of November, 2005.
ALNASHIR VISRAM
JUDGE