[2015] KEHC 2337 (KLR)
The court found that the application for extension of time to file an appeal was not filed with inordinate delay, as judgment was delivered on 28th May 2015 and the application was filed on 21st July 2015. The applicant provided a reasonable explanation for the delay, namely the lack of notice of judgment delivery....
Source-derived case information.
- Citation
- [2015] KEHC 2337 (KLR)
- Parties
- Applicant: Jeremiah Mugambi; Respondent: Kaingu Warehi Kalume
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 32 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- SJ Chitembwe
- Legal Topics
- Extension of Time, Appeals Out of Time, Stay of Execution, Balance of Equities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Mugambi
Applicant
Kaingu Warehi Kalume
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 extension of time to file an appeal out of time.
- 2 Whether the delay in filing the application was inordinate or excusable.
- 3 Whether the respondent will be prejudiced by the grant of extension of time.
Ratio Decidendi
The court found that the application for extension of time to file an appeal was not filed with inordinate delay, as judgment was delivered on 28th May 2015 and the application was filed on 21st July 2015. The applicant provided a reasonable explanation for the delay, namely the lack of notice of judgment delivery. The court recognized the applicant's right to appeal and the need to balance this with the respondent's right to enjoy the fruits of judgment. Accordingly, the court allowed the application for enlargement of time, subject to the applicant depositing Ksh.100,000/- as security within 45 days, and ordered that costs follow the outcome of the appeal.
Court Disposition
application allowed
Orders
- The application for enlargement of time is allowed.
- The applicant to file his appeal within 14 days hereof.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
MISC. APPLICATION NO.32 OF 2015
JEREMIAH MUGAMBI .................................................................... APPLICANT
VRS
KAINGU WAREHI KALUME ...................................................... RESPONDENT
RULING
The application dated 20th July, 2015 is seeking extention of time so that he can file appeal out of time. It is supported by the applicant's affidavit of the same date. The respondent filed a replying affidavit sworn on 27th July, 2015. Parties agreed to file written submission but none were filed.
The explanation given in the supporting affidavit is that the judgment was to be delivered on 14th May,2015 but it was not. It was to be delivered on notice but no such notice was received before a demand letter was received. On his part the respondent maintain that the intended appeal is frivolous and vexatious, that the application has been lodged with inordinate delay and he should be allowed to enjoy the fruits of litigation.
The record shows that judgment was delivered on 28th May, 2015. This application was filed on 21st July 2015. I do find that the application has not been filed with inordinate delay. The record shows that the respondent was awarded Ksh.90,000/- as general damages. The applicant's application only mentions an order of stay pending the hearing of the application. It is clear that even if the time to file appeal is enlarged, the respondent will be free to execute. This will necessitate the filing of another application for stay of execution.
Since the applicant is entitled to pursue an appeal, the court has to strike a balance between that right and the right of the respondent to enjoy the fruits of his judgment. I do allow the application for enlargement of time. The applicant to file his appeal within 14 days hereof. I do further order that the applicant deposits either in court or interest earning account of both advocates a total of Ksh.100,000/- (One Hundred Thousand Shillings Only) within forty five (45) days hereof. Costs shall follow the outcome of the appeal.
Dated, signed and delivered at Malindi this 5th day of October, 2015.
SAID J. CHITEMBWE
JUDGE