[2022] KEHC 3326 (KLR)
The court found that while the delay in filing the appeal was not inordinate, the explanation for the delay was unsatisfactory as it was due to the applicant's own inefficiency in misplacing the office file and failing to reconstruct it from court records. The court also noted that the application for extension of...
Source-derived case information.
- Citation
- [2022] KEHC 3326 (KLR)
- Parties
- Applicant: Solomon Githinji; Respondent: Samwel Mbajo M’Kiunga; Respondent: Edward Mutembei
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 12 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- Application for extension of time to file appeal granted, subject to payment of costs and filing of record of appeal within 30 days.
- Judges
- EM Muriithi
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Githinji
Applicant
Samwel Mbajo M’Kiunga
Respondent
Edward Mutembei
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal beyond the statutory period.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
- 3 Whether the respondents would suffer prejudice if the extension of time is granted.
Ratio Decidendi
The court found that while the delay in filing the appeal was not inordinate, the explanation for the delay was unsatisfactory as it was due to the applicant's own inefficiency in misplacing the office file and failing to reconstruct it from court records. The court also noted that the application for extension of time was filed before the respondents settled the decretal sum, thus it could not be considered an afterthought. The court exercised its discretion to grant the extension of time, but ordered the applicant to pay costs to the respondents due to the avoidable nature of the delay.
Court Disposition
Application for extension of time to file appeal granted, subject to payment of costs and filing of record of appeal within 30 days.
Orders
- The application for extension of time to file appeal is granted.
- The applicant shall pay costs assessed at Ksh. 20,000 to the respondents' counsel.
Full Case Text
Judgment text and source record
24 paragraphs
Githinji v M’Kiunga & another (Miscellaneous Application 12 of 2022) [2022] KEHC 3326 (KLR) (30 June 2022) (Ruling)
Neutral citation: [2022] KEHC 3326 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Application 12 of 2022
EM Muriithi, J
June 30, 2022
Between
Solomon Githinji
Applicant
and
Samwel Mbajo M’Kiunga
1st Respondent
Edward Mutembei
2nd Respondent
Ruling
1. The appellant seeks extension of time to file appeal against the judgment of the trial court delivered on November 18, 2021. At the time of filing the application for extension of time on 3/3/2021, the application was 2 months overdue for the filing of the Memorandum of appeal which ought to have been filed 30 days after the judgment on November 18, 2021.
2. It is not inordinate delay. However, the explanation given for the delay place the fault squarely in the applicant’s office in terms that “the delay in filing the appeal was occasioned by the fact that this office file was misplaced and could not be traced in the office and by the time it was found, the 30-day windows for filing an appeal had lapsed.”
3. There is no explanation as to why the application for extension was not filed shortly on expiry of the 30 days window with copies obtained from the court record. The suggestion given orally in court that the client took time to give instructions to appeal was not supported by evidence.
4. The Respondent pointed out that they had already settled the decretal sum of Kshs. 792,230 by cheque payment on 4/3/2022 and submitted that the application for extension of time was “an afterthought coming hot on the heels of the settlement of the decretal sum.”
5. To be sure, the application was filed on 3/3/2022 and the payment by Cheque if due on 4/3/22 was later in time and it cannot be said to have an afterthought application. The application has merit and it shall be granted.
6. However, as the application was occasioned by the inefficiencies of the applicant in as submitted giving instructions to appeal late and if this counsel in misplacing the office file and not seeking to reconstruct his file from the court records, the applicant must be mulcted in costs for making this application necessary.
Orders 7. Accordingly, for the reasons set out above the court grants the application for extension of time to file appeal subject to the payment of costs assessed at Ksh.20,000/= to the Respondents’ counsel and filing of the Record of Appeal both to be done within 30 days from the date of this ruling.Order accordingly.
DATED AND DELIVERED ON THIS 30THDAY OF JUNE 2022. EDWARD M. MURIITHIJUDGEAPPEARANCESM/S Maitai Rimita & Co. Advocates for the Applicant.M/S Mithega & Kariuki Advocates for the Respondent.