[2013] KEHC 3370 (KLR)
The court found that the applicants' explanation for the delay in filing the appeal was not genuine, as the record showed they were present when the ruling was delivered. The delay of over one year was inordinate and unjustified. However, the court exercised its discretion to grant leave to appeal out of time solely...
Source-derived case information.
- Citation
- [2013] KEHC 3370 (KLR)
- Parties
- Applicant: Francis Gichobi Mbute; Applicant: Joseph Njeru Mbute; Respondent: Rusua Wakabari Kibuchi (suing as guardian and next friend of Stephen Njoka Kibuchi)
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 183 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed; leave to file appeal out of time granted.
- Legal Topics
- Extension of Time, Leave to Appeal, Delay in Filing, Criteria for Extension
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Gichobi Mbute
Applicant
Joseph Njeru Mbute
Applicant
Rusua Wakabari Kibuchi (suing as guardian and next friend of Stephen Njoka Kibuchi)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the length of delay is inordinate and if it can be excused.
- 3 Whether the grounds of appeal raise arguable issues justifying extension of time.
Ratio Decidendi
The court found that the applicants' explanation for the delay in filing the appeal was not genuine, as the record showed they were present when the ruling was delivered. The delay of over one year was inordinate and unjustified. However, the court exercised its discretion to grant leave to appeal out of time solely on the basis that the grounds of appeal raised arguable issues, which is a relevant factor in considering extension of time. The court emphasized that the orders sought are not automatic and that the applicants' conduct was not acceptable, but allowed the application in the interests of justice, granting 14 days to file the appeal in the appropriate court.
Court Disposition
Application allowed; leave to file appeal out of time granted.
Orders
- Applicants granted leave to file appeal out of time within 14 days.
- The appeal should be filed at the Kerugoya High Court, which now has jurisdiction over the matter.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Miscellaneous Civil Application 183 of 2011 [if gte mso 9]><![endif]
FRANCIS GICHOBI MBUTE....…………………...……......….1ST APPLICANT
JOSEPH NJERU MBUTE …............................................. 2ND APPLICANT
VERSUS
RUSUA WAKABARI KIBUCHI
(Suing as guardian and next friend of
STEPHEN NJOKA KIBUCHI ………...........…………………… RESPONDENT
R U L I N G
This is the Notice of Motion dated 12/10/2011 and filed the same day. It is brought under Order 50 rule 6 Civil Procedure Rules for;
1)An order granting Leave to the Applicants to file an appeal out of time in respect of a Ruling delivered on 27/7/2010 in Wanguru Misc. Succession Cause No.31/91.
2)That the draft Memorandum of appeal to be deemed as duly filed upon payment of filing fees.
The main ground is that the Applicants only came to know the Orders of the lower Court when they were stopped from cultivating the rice holding in August 2011. The application is supported by the affidavit of the 1st Applicant – Francis Gichobi Mbute. In it he explains all the reasons making him believe they have an arguable appeal.
A perusal of the proceedings shows that the Ruling complained of was read out in open Court on 27/7/2010 in the presence of Francis Gichobi, Joseph Njeru and Rusia Wakabari. The Applicants herein are (1) FRANCIS GICHOBI MBUTE and (2) JOSEPH NJERU. It is therefore an open lie when they claim they were not aware of the Orders of the Court until they were stopped from cultivating the rice holding.
This application was filed on 12/10/2011. This is a delay of over one year. And to try to justify it the Applicants have used a lie. That is not acceptable even if the Respondent has not filed papers to oppose it. The orders are not automatic.
In the case of KITALE ELGON CO-OPERATIVE UNION LIMITED -VS- SETH NYAWARE OMAMO & ANOTHER CIVIL APPLICATION NO. NAIROBI 58/99 [1999] LLR 371 6(CAK) the of Court of Appeal held that a delay of three (3) months without an explanation is inordinate.
In TRADE BANK LTD (in liquidation) -VS- L.Z. ENGINEERING CONSTRUCTION COMPANY LTD & OTHERS, CIVIL APPLICATION NO. NAIROBI 282/98 [1998] LLR 846 (CAK) the Court of Appeal held that the following are the factors to be considered in an application for extension of time
i.Length of delay
ii.Reason for the delay
iii.Possibility/chances of success
iv.Prejudice
This was also the case in JOYCE MUTHONI NJAGI -VS- ELIZABETH M. NYAGA & ANOTHER – CIVIL APPLICATION NO. NAIROBI 168/1997 [1997] LLR 1184 CAK.
In the current application its clear that the length of delay is inordinate. And the reason for the delay is not genuine.
I will only grant the Leave sought because of the grounds raised in the appeal which form part of factor number (iii) in the considerations for extension of time. The applicants are allowed 14 days to file the appeal. The Ruling being challenged was made by the Principal Magistrate's Court Wang'uru which now falls under Kerugoya High Court. And that's where the Appeal if any should be filed.
DATED DELIVERED AND SIGNED AT EMBU THIS 2ND DAY OFMAY2013
H.I. ONG'UDI
J U D G E
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