[2001] KEHC 440 (KLR)
The court found that the applicant failed to provide any explanation for the 11-day delay between receiving the lower court proceedings and filing the application for leave to appeal out of time. Additionally, there was no explanation for the further delay in prosecuting and serving the application, which was only...
Source-derived case information.
- Citation
- [2001] KEHC 440 (KLR)
- Parties
- Applicant: Esther Nzembi Munyasya; Respondent: Daniel Mwengea Mukolo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 190 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Nzembi Munyasya
Applicant
Daniel Mwengea Mukolo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the delay in prosecuting and serving the application is excusable.
- 3 Whether granting leave to appeal out of time would prejudice the respondent.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the 11-day delay between receiving the lower court proceedings and filing the application for leave to appeal out of time. Additionally, there was no explanation for the further delay in prosecuting and serving the application, which was only brought to court and served on the respondent over a year after filing. The court noted that costs in the lower court had already been assessed and paid to the respondent, and that the cumulative effect of the delays amounted to prejudice against the respondent. Consequently, the court held that the applicant had not met the threshold for the grant of leave to appeal out of time...
Court Disposition
application dismissed with costs
Orders
- The application for leave to appeal out of time is refused.
- The applicant shall pay the costs of this application to the respondent.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL MISC. APPLICATION NO. 190 OF 1998 ESTHER NZEMBI MUNYASYA ::::::::::::::::::::::::::::::::: APPLICANT VERSUS DANIEL MWENGEA MUKOLO ::::::::::::::::::::::::::::::::: RESPONDENT
Coram: J.W. Mwera J. Kibanga Advocate for Applicant 10 Mati Advocate for Respondent C.C. Muli
***************************** R U L I N G
A notice of motion brought under O 50 r. 1 Civil Procedure Rules S.79 Civil Procedure Act and dated 24. 12. 98 prays for orders that the applicant be granted leave to appeal out of time. The reasons advanced for that prayer were that the appeal had merit (arguable?) and that failure to appeal in time was because the lower court delayed in supplying certified proceedings applied for. That refusal to grant the prayer would work 20 hardship against this applicant. There was and affidavit to support this application which Mr. T. Musyoki argued and Mr. Mati opposed.
The court heard that the decision to be appealed against was delivered on 15. 9.98 so the applicant had 30 days until 15. 10. 98 to appeal. But that when he applied for proceedings orally after the judgement followed by a letter and due deposit, the same were availed on 13. 11. 98 – some 28 days out of time. It then shows that this application was filed on 24. 11. 98 – another 11 days later. That the case was for damages arising from a road accident and so appealing out of time could not prejudice the Respondent at all. Mr. Mati had a contrary view. He submitted that even with 11 days elapsing since lower court proceedings were availed and this application filed, it was not diligently 10 prosecuted. It first came to court on 9. 2.2000 – one and a half years since filing and it was served on the Respondent on 6. 6.2000. That in the meantime costs in lower court were assessed and paid. All this amounted to prejudice to the Respondent.
After hearing both sides, this application is disallowed. First no explanation has been given as to why it took the applicant 11 days to apply for enlargement of time to appeal. Or why it took so long to prosecute let alone serve it on Respondent. It was not denied that costs have since been assessed and paid to Respondent. All in all this application is refused with costs. 20 Orders accordingly.
Delivered on 1st February 2001.
J. W. MWERA
JUDGE