[2008] KEHC 523 (KLR)
The court found that the applicants provided a reasonable explanation for the delay in filing the appeal, namely, that the delay was caused by the time taken by their insurer to verify the employment status of the plaintiff and to instruct counsel accordingly. The court noted that the application for extension of...
Source-derived case information.
- Citation
- [2008] KEHC 523 (KLR)
- Parties
- Applicant: Fred Wafula; Applicant: Ken-Knit (K) Limited; Respondent: Faustine Ivelia Namunyu
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 290 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed with costs to the respondent; leave to file appeal out of time granted
- Judges
- AI Tullu
- Legal Topics
- Extension of Time, Leave to Appeal, Delay in Filing, Explanation for Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Wafula
Applicant
Ken-Knit (K) Limited
Applicant
Faustine Ivelia Namunyu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided a reasonable explanation for the delay in filing the appeal out of time.
- 2 Whether leave to file an appeal out of time should be granted in the circumstances.
Ratio Decidendi
The court found that the applicants provided a reasonable explanation for the delay in filing the appeal, namely, that the delay was caused by the time taken by their insurer to verify the employment status of the plaintiff and to instruct counsel accordingly. The court noted that the application for extension of time was brought promptly after the lapse of the appeal period and that there was no evidence of bad faith or undue delay on the part of the applicants. The court exercised its discretion to allow the application, finding that the interests of justice would be served by granting leave to appeal out of time, subject to the applicants filing the appeal within fourteen days and...
Court Disposition
application allowed with costs to the respondent; leave to file appeal out of time granted
Orders
- The application for leave to file an appeal out of time is allowed.
- The appeal shall be filed within fourteen (14) days from the date of this ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Misc. Civ. Appli. 290 of 2008
FRED WAFULA …………...…… 1ST DEFENDANT/APPLICANT
KEN-KNIT (K) LIMITED ……… 2ND DEFENDANT/APPLICANT
VERSUS
FAUSTINE IVELIA NAMUNYU …...PLAINTIFF/RESPONDENT
R U L I N G
This is an application by the Applicants for leave to file an appeal out of time. Judgement in Eldoret SPMCC No. 121 of 2006 was delivered on 3. 4.2008.
Counsel for the applicant swore an affidavit that the Applicants instructed their firm to lodge an appeal.
That the delay in filing the Memorandum of Appeal was occasioned by the reason that their client’s insurer were still verifying from their insured whether the Plaintiff was a bona fide employer. That by the time they confirmed that the Plaintiff was not a bona fide employee of the Defendant Company the time limit within which to file an appeal had lapsed on 3. 5.2008.
This application was filed on 26th May, 2008.
The application was opposed and the Respondent filed a Replying Affidavit sworn by his Counsel. They claim that the cause of action herein was a road traffic accident and therefore the issue of whether the Plaintiff was an employee does not arise.
I have considered the application and affidavit. The application was brought promptly in my view. I have not seen the pleadings to ascertain the nature of the cause of action. It is probably true that this was running down matter. However, it is not clear the nature of the insurance cover in this matter. Annexure of the pleadings would have assisted together with the insurance policy. This would have thrown light as to whether the question of employment of the claimant would affect the insurance cover.
In any case the Applicant explains that the delay in filing the memorandum of appeal was caused by its Insurance Company. The Insurance Company is not a party herein.
I think that the Applicant has given a reasonable explanation for the delay in filing the appeal. This was caused by the time it took its insurers to instruct Counsel to file an appeal.
I do hereby allow the application with costs to the Respondent. The Appeal shall be filed within fourteen (14) days.
DATED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF DECEMBER, 2008.
M. K. IBRAHIM
JUDGE
In the presence of:-
Mr. Nabasenge for the Defendant/Applicant
Mr. Kasavuli for the Plaintiff/Respondent