[2007] KEHC 223 (KLR)
The court found that the delay in filing the appeal was not excessive and was satisfactorily explained by the applicant, who provided a certificate of delay indicating that the delay was due to pressure of work in the court typing pool. The court was convinced that there were substantive matters to be raised in the...
Source-derived case information.
- Citation
- [2007] KEHC 223 (KLR)
- Parties
- Applicant: Jeremiah Nyaga Rufus; Respondent: Joseph Mwaniki Muchira
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 189 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Nyaga Rufus
Applicant
Joseph Mwaniki Muchira
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 file an appeal out of time against the order of the subordinate court.
- 2 Whether the delay in filing the appeal was sufficiently explained and justified.
Ratio Decidendi
The court found that the delay in filing the appeal was not excessive and was satisfactorily explained by the applicant, who provided a certificate of delay indicating that the delay was due to pressure of work in the court typing pool. The court was convinced that there were substantive matters to be raised in the proposed appeal and that the respondent's allegation regarding the lack of an automatic right of appeal was unsupported. Consequently, the court exercised its discretion to grant leave to the applicant to file the appeal out of time, subject to the appeal being filed within 14 days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the appeal out of time.
- The proposed appeal must be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT EMBU
MISC CIV APPLI 189 OF 2006
JEREMIAH NYAGA RUFUS…………………………………………..APPLICANT
VERSUS
JOSEPH MWANIKI MUCHIRA……………………………………RESPONDENT
RULING
Being Notice of Motion dated 21/12/2006 the applicant seeks leave to file appeal out of time against order of subordinate court in Kerugoya Senior Resident Magistrate Civil Case No. 380 of 2003 made on 10/4/2006. The application is supported by affidavit explaining the delay. The draft memorandum of appeal is exhibited and there is a certificate of delay showing there was pressure of work in court typing pool and that the copies were ready by 30/11/2006.
I have perused in Replying Affidavit paragraph 4 therefore argues on the matter the lower court was finalized paragraph refers to Section 27 of Civil Procedure Act. There are matters to be raised in the appeal. The allegation that there is no automatic right of appeal from the types of orders it is proposed to appeal is a several allegation with no support.
Upon considering submissions by both sides and convinced that the application should be allowed. The delay complained of is not excessive in the circumstances of this matter. Orders are granted as prayed. The proposed appeal to be filed within the next 14 days c.
Costs to the Respondent.
Dated this 24th July, 2007.
J. N. KHAMINWA
JUDGE
24/7/2007
Khaminwa – Judge
Njue – Clerk
Mr. Munene HB for Mr. Chomba
Ruling read in open court.
J. N. KHAMINWA
JUDGE