[2016] KEHC 1132 (KLR)
The court found that the applicant had a right of appeal and that the memorandum of appeal was not frivolous. The court accepted that the applicant faced challenges in obtaining the ruling and proceedings due to alleged lack of notice and issues with the court file. Balancing the rights of both parties and...
Source-derived case information.
- Citation
- [2016] KEHC 1132 (KLR)
- Parties
- Appellant: Gateway Insurance Company; Respondent: David Nyagah Muturi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 121 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Extension of Time, Memorandum of Appeal, Leave to Appeal, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gateway Insurance Company
Appellant
David Nyagah Muturi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file a memorandum of appeal out of time.
- 2 Whether the circumstances justified enlargement of time under the Civil Procedure Act and Rules.
Ratio Decidendi
The court found that the applicant had a right of appeal and that the memorandum of appeal was not frivolous. The court accepted that the applicant faced challenges in obtaining the ruling and proceedings due to alleged lack of notice and issues with the court file. Balancing the rights of both parties and considering that the respondent already had judgment in their favour, the court exercised its discretion to grant leave to file the memorandum of appeal out of time, subject to conditions safeguarding the respondent's interests.
Court Disposition
application allowed
Orders
- Leave is granted to file the memorandum of appeal out of time.
- The record of appeal shall be filed within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. 121 OF 2016
GATEWAY INSURANCE COMPANY..................................APPELLANT
VERSUS
DAVID NYAGAH MUTURI................................................RESPODNENT
RULING
This is an application under Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Sections 3A, 79 and 95 of the Civil Procedure Act, for leave to enlarge time to file a memorandum of appeal following a ruling by the lower court. The reasons for the application appear on the face of the application which is also supported by an affidavit annexed thereto. The application is opposed and there is a replying affidavit sworn by the advocate for the respondent.
The applicant has the right of appeal following the ruling of the lower court. The said ruling was said to have been delivered without notice to the parties. It is also alleged that the lower court file was missing when the applicant was pursuing the proceedings and the ruling. This of course has been disputed by the respondent.
I have looked at the memorandum of appeal and the same cannot be said to be frivolous. Granted that the respondent has a judgment in his favour, but also that the applicant has the right to exhaust all avenues provided by law, taking into consideration the facts available and to secure the rights of both parties, I allow the application on the following terms.
Leave is hereby granted to file the memorandum of appeal out of time. The record of appeal shall be filed within 30 days from today. In the meantime, the decretal sum shall be deposited in an interest earning account in the names of advocates of both parties within 30 days from today pending the hearing and determination of appeal.
Costs in the cause.
Dated, signed and delivered at Nairobi this 11th Day of November, 2016.
A. MBOGHOLI MSAGHA
JUDGE