[2017] KEHC 5060 (KLR)
The court found that the delay in filing the application for leave to appeal out of time was satisfactorily explained and excusable. The memorandum of appeal disclosed arguable grounds, and no prejudice was demonstrated that would be suffered by the respondent if the application was allowed. The court exercised its...
Source-derived case information.
- Citation
- [2017] KEHC 5060 (KLR)
- Parties
- Applicant: The Personal Representative of the Estate of The Late Gerishon Kamau Kirima; Respondent: Nzomo Wambua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 330 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Res Judicata, Authority of Advocate, Exercise of Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
The Personal Representative of the Estate of The Late Gerishon Kamau Kirima
Applicant
Nzomo Wambua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time.
- 2 Whether the application is res judicata due to previous grant of leave.
- 3 Whether the applicant's advocate had authority to act for the estate.
Ratio Decidendi
The court found that the delay in filing the application for leave to appeal out of time was satisfactorily explained and excusable. The memorandum of appeal disclosed arguable grounds, and no prejudice was demonstrated that would be suffered by the respondent if the application was allowed. The court exercised its discretion in favour of the applicant, emphasizing that technicalities should not bar substantive justice. The application was therefore allowed, with directions for the appeal to be filed within 30 days and costs awarded to the respondent.
Court Disposition
application allowed
Orders
- Applicant to file the appeal within 30 days from the date of the ruling.
- Respondent to be paid the costs of the application.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
MISC. APPLICATION 330 OF 2013
The Personal Representative of the Estateof The Late Gerishon
Kamau Kirima DECEASED…………….....APPELLANT/ APPLICANT
VERSUS
NZOMO WAMBUA …...............................DEFENDANT/RESPODENNT
RULING
This is an application by way of Notice of Motion under Order 43 Rule 2, Order 51 rule 1 and 3 of the Civil Procedures Rules, Section 79 G and 3A of the Civil Procure Act for leave to appeal out of time. The reasons are set out on the face of the application, and the supporting affidavit sworn by the advocate for the applicant.
The application is opposed and grounds of opposition filed. It would appear that leave had earlier been granted but no step was taken by the applicant hence the respondent’s submission that the issue is res judicata.
The respondent is said to hold a judgement in his favour and any continued denial of the benefit of that judgment is prejudicial. There is also the issue of whether or not the advocate Njeri Kariuki had authority to act for the estate of Gerrison Kamau Kirima.
I have examined the material before me. The delay in filing the application has been explained and in my view is excusable. The memorandum of appeal on record contains what appears to be arguable grounds. No prejudice has been demonstrated may be visited upon the respondent if the orders sought are allowed. Technicalities have been outlawed by law and I believe the discretion of this court should be exercised in favour of the applicant.
Accordingly, the application is allowed, and I order that the applicant shall file the appeal within 30 days from today. The circumstances of this case dictate that the respondent be paid the costs of the application. It is so ordered.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A. MBOGHOLI MSAGHA
JUDGE