[2013] KEHC 109 (KLR)
The court found that the applicant had provided satisfactory reasons for the delay in filing the appeal, including evidence of applying for typed proceedings, payment for copying charges, and the issuance of a certificate of delay. The court held that it is important for a party to have typed proceedings for ease of...
Source-derived case information.
- Citation
- [2013] KEHC 109 (KLR)
- Parties
- Applicant: Irene Wairimu Muthee; Respondent: Gitonga Mugambi Muketha; Respondent: Wilson Irungu Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 11 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Wairimu Muthee
Applicant
Gitonga Mugambi Muketha
Respondent
Wilson Irungu Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has shown sufficient cause for the delay in filing the appeal.
- 2 Whether the court should exercise its discretion to extend time for filing an appeal.
Ratio Decidendi
The court found that the applicant had provided satisfactory reasons for the delay in filing the appeal, including evidence of applying for typed proceedings, payment for copying charges, and the issuance of a certificate of delay. The court held that it is important for a party to have typed proceedings for ease of reference and that the applicant had demonstrated arguable grounds of appeal. The respondents did not controvert the applicant's assertions. Consequently, the court exercised its discretion in favor of the applicant and granted leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- The applicant is granted 30 days leave to file an appeal out of time.
- Costs of the motion to abide the outcome of the intended appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC. CIVIL APPLICATION NO. 11 OF 2012
IRENE WAIRIMU MUTHEE.........................................APPLICANT
VERSUS
GITONGA MUGAMBI MUKETHA....................1ST RESPODNENT
WILSON IRUNGU MWANGI..........................2ND RESPODNENT
RULING
Pursuant to the provisions ofSection 79G of the Civil Procedure ActandOrder 50 Rule 4 of the Civil Procedure Rules, Irene Wairimu Muthee, the applicant herein, took out the Motion dated 26th January, 2012 in which she sought for interalia an order extending time to file an appeal against the Judgment and or decree of the Principal Magistrate delivered on 25th August, 2011 vide Karatina P.M.C.C.C no. 22 of 2008. The applicant swore an affidavit he filed in support of the Motion. Gitonga Mugamba MukethaandWilson Irungu Mwangi, the 1st and 2nd Respondents opposed the Motion by filing the replying affidavit of Mary Kinyanjui, the legal manager claims Direct Line Assurance Co.Ltd.
The main ground argued in support of the Motion is that it took time for the Applicant to be supplied with typed proceedings until the time fixed to file appeal lapsed. The applicant further stated that he has an appeal with high chances of success. The Respondents are of the view that the Applicant did not need the typed proceedings to file an appeal because it was sufficient for the Applicant's advocate to simply peruse the court file to ascertain the issues.
I have considered the rival averments and submissions. In considering whether or not to extend time to appeal, this court has a wide discretion. The applicant is only required to show he has a good and sufficient cause for not filing the appeal in time. The Applicant has clearly stated that he has a good appeal with high chances of success. He has stated also that he needed to be supplied with typed proceedings to enable him prepare and file an appeal. The Respondents have not controverted those assertions. There is evidence that the applicant applied to be supplied with typed proceedings. A deposit was made to pay for the copying charges. A certificate for delay was given. In my view, it is important for a party for ease of reference to have typed proceedings. It is possible one may not read the handwritten notes of certain judicial officers. I am convinced the applicant has given a satisfactory reason to enable me exercise my discretion in her favour. I have further looked at the draft memorandum of appeal and I am convinced there are arguable grounds of appeal.
In the end, I allow the application. Consequently, I grant the applicant 30 days leave to file an appeal out of time. Costs of the motion to abide the outcome of the intended appeal.
Dated, Signed and delivered this 16th day of December 2013.
J.K.SERGON
JUDGE
- In open Court in the presence of Kimunya holding brief for Ngatunyi for Respondent and
- Githini holding brief for Mbuthia for Applicant.