[2007] KEHC 1042 (KLR)
The court found that although there was a delay of 50 days in seeking leave to appeal, the delay was explained by the time taken to obtain the proceedings and the certificate of delay from the lower court. The court exercised its discretion under the Succession Act and the Civil Procedure Rules, noting the...
Source-derived case information.
- Citation
- [2007] KEHC 1042 (KLR)
- Parties
- Applicant: Francis Karani Kinyua; Respondent: Moses Ngunu Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 133 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Succession Appeals, Delay in Filing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Karani Kinyua
Applicant
Moses Ngunu Mbogo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time in a succession matter.
- 2 Whether the delay in filing the appeal was sufficiently explained and excusable.
Ratio Decidendi
The court found that although there was a delay of 50 days in seeking leave to appeal, the delay was explained by the time taken to obtain the proceedings and the certificate of delay from the lower court. The court exercised its discretion under the Succession Act and the Civil Procedure Rules, noting the seriousness of the issues involved in the succession dispute. The court concluded that the interests of justice would be served by granting the applicant an extension of time to file the appeal, despite the delay.
Court Disposition
application allowed
Orders
- Leave to file appeal out of time is granted.
- Applicant to file the proposed appeal within 14 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc Appli 133 of 2006
FRANCIS KARANI KINYUA……………………………………..APPLICANT
VERSUS
MOSES NGUNU MBOGO…………………………….……..RESPONDENT
RULING
Application dated 28/9/2006 seeks leave to file appeal out of time brought under Order 49 rule 5.
On the ground that Judgment to be appealed from was delivered on 24/8/2006 a certificate of delay dated 14/9/2006 was issued by the lower court and there is good chances of success on appeal. The Respondent opposes the application on the ground that no judgment was delivered on 24/8/2006 but the record shows that it was delivered on 14/7/2006. The record shows that there was an error because the request for proceedings was dated 14/7/2006 and the certificate of delay is dated 13/9/2006 confirming that the proceedings were ready on 25/8/2006. Therefore there is delay from that date to 11/9/2006 for issue of certificate which was dated 13/9/2006 in total the delay is of 50 days.
I have considered the submissions and affidavits filed by both parties, I note that this is an issue of succession. The provisions of Succession Act Cap 160 empowers the High Court to hear appeals in disputes in succession cases. I do exercise my discretion and notwithstanding there is delay of a period of 50 days, the issues involved are serious.
I allow application and grant extension of time. The applicant shall have 14 days with which to file proposed appeal.
Costs to the respondent.
Dated this 2nd July, 2007.
J. N. KHAMINWA
JUDGE
2/7/2007
Khaminwa – Judge
Njue – Clerk
Francis Karani present in person
Moses Ngunu present in person
Ruling Read in open court.
J. N. KHAMINWA
JUDGE