[2005] KEHC 433 (KLR)
The court found that the applicant failed to provide any satisfactory explanation for the delay in filing the appeal out of time. The initial application was filed eleven months after judgment without explanation, and after its dismissal for procedural incompetence, a further four months elapsed before the present...
Source-derived case information.
- Citation
- [2005] KEHC 433 (KLR)
- Parties
- Appellant: John Kahiga as substituted with Ndungu Mwaura; Respondent: Gichia Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 563 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Judges
- ARM Visram
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Sufficient Cause, Delay in Filing, Civil Procedure Act Section 79g
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kahiga as substituted with Ndungu Mwaura
Appellant
Gichia Ngugi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for delay in filing the appeal out of time under Section 79G of the Civil Procedure Act.
- 2 Whether the unexplained delay in filing the application for leave to appeal out of time is excusable.
Ratio Decidendi
The court found that the applicant failed to provide any satisfactory explanation for the delay in filing the appeal out of time. The initial application was filed eleven months after judgment without explanation, and after its dismissal for procedural incompetence, a further four months elapsed before the present application was filed. The applicant did not demonstrate when or if he applied for certified copies of the proceedings or judgment, nor did he annex a certificate of delay. The court held that representation by an advocate in the lower court imposed a duty to inform the applicant of his rights, and that the reasons advanced did not amount to sufficient cause as required by...
Court Disposition
application dismissed
Orders
- The application for leave to file appeal out of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Civ Case 563 of 2005
JOHN KAHIGA as substituted withNDUNGU MWAURA …………………… APPELLANT
VERSUS
GICHIA NGUGI …………………………............................................………….. RESPONDENT
RULING
This is an application for leave to file appeal out of time under Section 79 G of the Civil Procedure Act.
That Section states as follows:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the Appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
This is an old 1990 case in which Judgment was delivered on 11th April, 2003. The application for leave to file appeal out of time was first filed on 6th February, 2004, some 11 months after Judgment. There is no explanation for that delay which I believe is inordinate. The application was dismissed by this Court on 10th December, 2004 for having been filed incompetently by advocates who were not properly on record. Then, it took another four months to file this present application. Again, the delay is not explained.
In my view none of these reasons demonstrate “sufficient cause” envisaged by Section 79 G for not filing this appeal in time. The Applicant was represented by an advocate in the lower court whose duty it was to explain to him the Judgment, and his right of appeal. He does not say when, if at all, he applied for certified copies of the proceedings and Judgment of the lower court; he has not annexed a certificate of delay; and in any event he did not need the proceedings to file the Memorandum of Appeal. All he required was a certified copy of the decree or order sought to be appealed from. Even then, Order 41 Rule 1 of the Civil Procedure Rules provides that the certified copy of the decree or order may be filed later.
Accordingly, this application is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 20th day of September, 2005.
ALNASHIR VISRAM
JUDGE