[2015] KEHC 6349 (KLR)
The court found that the applicant had moved expeditiously after judgment and provided a reasonable explanation for the delay, namely the time taken to consolidate and retrieve records. The court exercised its discretion under section 79G of the Civil Procedure Act to grant leave to file the memorandum of appeal out...
Source-derived case information.
- Citation
- [2015] KEHC 6349 (KLR)
- Parties
- Applicant: Eunice Auma Onyango; Respondent: Salin Akinyi Oluoch
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 2 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file memorandum of appeal out of time, subject to payment of costs.
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Memorandum of Appeal, Good and Sufficient Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Auma Onyango
Applicant
Salin Akinyi Oluoch
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown good and sufficient cause for failing to file the memorandum of appeal within the statutory period.
- 2 Whether leave to file the memorandum of appeal out of time should be granted.
Ratio Decidendi
The court found that the applicant had moved expeditiously after judgment and provided a reasonable explanation for the delay, namely the time taken to consolidate and retrieve records. The court exercised its discretion under section 79G of the Civil Procedure Act to grant leave to file the memorandum of appeal out of time, noting that any prejudice to the respondent could be compensated by an award of costs. The court further clarified that the memorandum of appeal need not be accompanied by the full record at the time of filing.
Court Disposition
Application allowed. Leave granted to file memorandum of appeal out of time, subject to payment of costs.
Orders
- The applicant shall file the memorandum of appeal within 7 days from the date of the ruling.
- The applicant shall pay the respondent Kshs. 10,000/- as costs within 7 days, failing which the appeal shall be deemed dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
MISC. CIVIL APPL. NO. 2 OF 2015
BETWEEN
EUNICE AUMA ONYANGO ............................................................. APPLICANT
AND
SALIN AKINYI OLUOCH .............................................................RESPONDENT
RULING
The Notice of Motion dated 5th January 2015 seeks leave to file a memorandum of appeal from the judgment and decree delivered in Rongo SRMCC No. 26 of 2014 on 14th November 2014. The application is supported by the applicant’s deposition in which she states that, “I was consolidating my records, some of which took long to retrieve, for purpose of filing the appeal.” Under section 79G of the Civil Procedure Act, the applicant is supposed to furnish “good and sufficient cause” for failing to file the memorandum of appeal within 30 days of the judgment.
It is not necessary to obtain the record of appeal to order to lodge the memorandum of appeal as section 79G of the Act provides for an opportunity to lodge a record of appeal at a later date. However, given the short time between the delivery of judgment and the time the application was filed, I am inclined to exercise my discretion in the applicant’s favour. Any prejudice to the respondent can be compensated by an award of costs.
The memorandum of appeal shall be filed within 7 days from the date hereof. The applicant shall pay the respondent Kshs. 10,000/- costs within 7 days otherwise the appeal shall be deemed dismissed.
DATEDandDELIVEREDatMIGORI this 5th day of March 2015.
D.S. MAJANJA
JUDGE
Mr Onyango instructed by Nyauke & Company Advocates for the applicant.
Respondent in person.