[2020] KEHC 9474 (KLR)
The court found that the delay in filing the application for extension of time to lodge the Notice of Appeal was satisfactorily explained by the withdrawal of the previous application, which was made under the wrong provision of law, and the change of advocates. The court held that the delay was neither inordinate...
Source-derived case information.
- Citation
- [2020] KEHC 9474 (KLR)
- Parties
- Applicant: FSM (Suing as mother and next friend of FK & JMM); Respondent: Johnson Munywoki Mwangangi; Respondent: Bank of Africa Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- DAS Majanja
- Legal Topics
- Extension of Time, Notice of Appeal, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
FSM (Suing as mother and next friend of FK & JMM)
Applicant
Johnson Munywoki Mwangangi
Respondent
Bank of Africa Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the delay in filing the application for extension of time to lodge a Notice of Appeal was inordinate or prejudicial to the respondents.
- 2 Whether the petitioner should be granted extension of time to file the Notice of Appeal against the judgment dismissing the petition.
Ratio Decidendi
The court found that the delay in filing the application for extension of time to lodge the Notice of Appeal was satisfactorily explained by the withdrawal of the previous application, which was made under the wrong provision of law, and the change of advocates. The court held that the delay was neither inordinate nor prejudicial to the respondents. Given that the judgment raised constitutional issues and there is a right of appeal, the court exercised its discretion to allow the application and deemed the Notice of Appeal as duly filed and served.
Court Disposition
application allowed
Orders
- The application dated 21st February 2020 is allowed.
- The Notice of Appeal lodged on 28th February 2020 is deemed as duly filed and served.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
PETITION NO. 5 OF 2019
BETWEEN
FSM (Suing as mother
and next friend of FK & JMM)...................................PETITIONER
AND
JOHNSON MUNYWOKI MWANGANGI.......1ST RESPONDENT
BANK OF AFRICA LIMTED...........................2ND RESPONDENT
RULING
The petitioner wishes to appeal against the judgment I delivered on 24th January 2020 dismissing the petition. By the Notice of Motion dated 21st February 2020 she seeks an order for extension of time to lodge a Notice of Appeal under section 7 of the Appellate Jurisdiction Act (Chapter 9 of the Laws of Kenya) against the judgment. The 1st respondent has opposed on the ground that the delay has not been explained.
I have considered the facts and submissions by counsel for the 1st respondent opposing the application and I find as follows:
1. The application for extension of time was filed on 21st February 2020 after a previous application was filed on 5th February 2020 was withdrawn.
2. The reason why counsel for the petitioner withdrew the application of 5th February 2020 is that I drew his attention to the fact that it had not made under the correct provision of the law.
3. At the same time, I granted leave to the petitioner’s new advocates to come on record. This explains that why there was a delay in filing the application as the petitioner instructed a new advocate and he explained as much in the application.
4. The application dated 21st February 2020 was indeed allowed but the order set aside on application by the 1st defendant by which time, the Notice of Appeal had been filed.
Taking the totality of circumstances, I do not consider the delay in this matter inordinate or prejudicial to the respondents. The judgment raises constitutional issues from which there is a right of appeal and for the reasons given, I do not think the petitioner should be prevented from pursuing her right of appeal.
Accordingly, the application dated 21st February 2020 is allowed and the Notice of Appeal lodged on 28th February 2020 is deemed as duly filed and served. The costs shall abide by the intended appeal.
DATED and DELIVERED at NAIROBI this 13th day of MARCH 2020.
D. S. MAJANJA
JUDGE
Court Assistant: Mr M. Onyango.