[2014] KEHC 2024 (KLR)
The court found that the applicant had sufficiently explained the reasons for the delay in filing the appeal, namely that neither he nor his late father were notified of the judgment and only became aware of it upon receipt of a letter seeking execution. The court exercised its discretion in favour of the applicant,...
Source-derived case information.
- Citation
- [2014] KEHC 2024 (KLR)
- Parties
- Applicant: Kimani Mungai Joseph (suing as the legal representative of the estate of John Simon K. M. Gaitho – deceased); Respondent: Cecilia M. Spencer
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 194 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Enlargement of Time to Appeal
- Outcome
- application allowed
- Judges
- MM Kasango
- Legal Topics
- Extension of Time, Appeals Out of Time, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimani Mungai Joseph (suing as the legal representative of the estate of John Simon K. M. Gaitho – deceased)
Applicant
Cecilia M. Spencer
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Enlargement of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether leave should be granted to file an appeal against the judgment delivered on 12th July 2011 in Mombasa CMCC No. 3696 of 2001.
Ratio Decidendi
The court found that the applicant had sufficiently explained the reasons for the delay in filing the appeal, namely that neither he nor his late father were notified of the judgment and only became aware of it upon receipt of a letter seeking execution. The court exercised its discretion in favour of the applicant, holding that justice would be served by granting leave to appeal out of time, especially as the respondent did not oppose the application. The court was satisfied that the applicant acted promptly upon learning of the judgment and that denying the application would result in injustice and prejudice to the applicant.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file an appeal against the judgment delivered on 12th July 2011 in Mombasa CMCC No. 3696 of 2001 within thirty (30) days from the date hereof.
- The costs of the Notice of Motion dated 4th June 2014 shall be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 194 OF 2014
IN THE MATTER OF: AN INTENDED APPEAL BETWEEN KIMANI MUNGAI
JOSEPH (SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF JOHN SIMON K. M. GAITHO –DECEASED) AND CECILIA M. SPENCER
AND
IN THE MATTER OF: AN APPLICATION FOR ENLARGEMENT OF TIME TO
APPEAL KIMANI MUNGAI JOSEPH …… APPLICANT
RULING
The Notice of Motion dated 4th June 2014 is filed by Kimani Mungai Joseph. Although it was entitled “Ex parte” the Court ordered on 5th June 2014 the same be served upon Cecilia Spenser for hearing interpartes. The same was served by Registered Post but on the hearing day it was not opposed nor did Ms Spencer attend Court.
The application seeks an order to file an appeal out of time against the judgment delivered on 12th July 2011 in CMCC NO. 3696 of 2001 (Mombasa). In that Magistrate's Case Cecilia M. Spenser sued John Gaitho who is now Deceased. Gaitho the Deceased was the father of the Applicant Kimani Mungai Joseph. By his affidavit Kimani stated that he had obtained Limited Letters of Administration to enable him proceed with this matter. His father passed away on 17th June 2013. During his life time he was sued in CMCC 3696 OF 2001. Kimani deponed that neither he nor his late father were ever informed that the judgment in the Magistrate's Court had been delivered and it was until Kimani received a letter from an Advocate representing Spencer in June 2013, which letter was seeking to execute the Judgment of the Magistrate's Court that he realized it had been delivered. It is then that he decided to pursue the matter and hence the present application.
From the reading of the Judgment of the Magistrate's Case the Court found that the late Gaitho had encroached a road reserve and was therefore denying the other occupants access. Kimani has deponed that if the judgment does get executed he will suffer injustice and prejudice.
In view of the fact that Kimani has sufficiently explained the reasons why the appeal was not filed within time, I am minded which I shall do to grant him the following prayers-
a)Leave is hereby granted to the Applicant to file an appeal against the judgment delivered on 12th July 2011 in Mombasa CMCC No. 3696 of 2001 within thirty (30) days from this date hereof.
b)The costs of the Notice of Motion dated 4th June 2014 shall be in the cause.
It is so ordered.
DATED and DELIVERED at MOMBASA this 9TH day of OCTOBER, 2014.
MARY KASANGO
JUDGE