[2006] KEHC 305 (KLR)
The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely, the late supply of the proceedings and judgment as evidenced by the certificate of delay. The court emphasized that at this stage, it is not concerned with the merits or arguability of the intended...
Source-derived case information.
- Citation
- [2006] KEHC 305 (KLR)
- Parties
- Applicant: James Maina Ngiriri; Respondent: Njeri Ngiriri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 78 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Leave to Appeal, Delay in Filing, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maina Ngiriri
Applicant
Njeri Ngiriri
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reasons for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely, the late supply of the proceedings and judgment as evidenced by the certificate of delay. The court emphasized that at this stage, it is not concerned with the merits or arguability of the intended appeal, but only with the reasons for the delay. Since the applicant acted promptly upon receiving the necessary documents and filed the application for leave without undue delay, the court exercised its discretion in favor of the applicant and granted leave to file the appeal out of time.
Court Disposition
leave to appeal out of time granted
Orders
- Leave is granted to the applicant to file his appeal within 10 days from the date hereof.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc Appli 78 of 2005
JAMES MAINA NGIRIRI………………………..……….APPLICANT
VERSUS
NJERI NGIRIRI…………………………....…………..RESPONDENT
R U L I N G
The applicant herein seeks leave of this court to file his intended appeal against the decision of the Senior Resident Magistrate Muranga delivered on 6th April 2005 in Murang’a Senior Resident Magistrate Number 188, of 2002 out of time. Although the applicant has not provided copies of the proceedings or judgment nor has He provided a copy of a draft memo of appeal. The applicant has provided a copy of the certificate of delay showing that He applied for copies of the proceedings and judgment on 6th April 2005 but that the same were not supplied until 1st July 2005. This application was filed shortly thereafter on 13th July 2005.
In his supporting affidavit the applicant has indicated that the subject of the suit is “land” and this has not been denied. The court has unfettered discretion to extend time for filing an appeal provided a good explanation has been given for the delay in filing the appeal. There is no requirement that copies of the proceedings and judgment or draft memorandum must be availed to the court before the court can exercise its discretion. At this stage the court is not concerned as to whether the appeal is arguable or whether it has merits, the court is only concerned with the reasons for the delay in filing the appeal. In this case the applicant has satisfied this court that there are good and sufficient reasons for failing to file the appeal in time. It is only fair and proper that He be given the opportunity to file his appeal.
I do therefore grant leave to the applicant to file his appeal within 10 days from the date hereof.
Orders accordingly.
Dated, signed and delivered this 4th day of December 2006.
H. M. OKWENGU
JUDGE