[2016] KEHC 5472 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as the delay was occasioned by late receipt of proceedings and the inadvertent misplacement of the applicant's file due to an advocate leaving the firm. The respondents did not contest the application, and the...
Source-derived case information.
- Citation
- [2016] KEHC 5472 (KLR)
- Parties
- Applicant: John Kamau Ndere; Respondent: Ndetika Rural Sacco Society Ltd; Respondent: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 721 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Appeal Filing Deadlines, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kamau Ndere
Applicant
Ndetika Rural Sacco Society Ltd
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file and serve the record of appeal out of time.
- 2 Whether the delay in filing the appeal was excusable under the circumstances.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as the delay was occasioned by late receipt of proceedings and the inadvertent misplacement of the applicant's file due to an advocate leaving the firm. The respondents did not contest the application, and the court accepted the applicant's explanation as plausible. Therefore, the court exercised its discretion to allow the application and granted the applicant 10 days from the date of the ruling to file the appeal out of time.
Court Disposition
application allowed
Orders
- The applicant is granted 10 days from the date of the ruling to file an appeal out of time.
- Costs of the motion shall abide the outcome of the intended appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
HIGH COURT CIVIL MISC. APPLI. NO. 721 OF 2012
JOHN KAMAU NDERE......................................................APPLICANT
V E R S U S
NDETIKA RURAL SACCO SOCIETY LTD...........1ST RESPONDENT
THE HONOURABLE ATTORNEY GENERAL......2ND RESPONDENT
RULING
1. The subject matter of this ruling is the motion dated 17. 12. 2012 in which John Kamau Ndere, the Applicant herein, is seeking for an extension of time to file and serve A record of appal. The motion is supported by the affidavit of the Applicant. The motion was served but the same did not receive any response. When the motion came up for interpartes hearing the Respondents did not appear despite having been served, hence the Applicant was permitted to prosecute the application exparte.
2. It is the submission of the Applicant that he received typed proceedings late after the time to file appeal had lapsed. He also attached a copy of the certificate of delay to the supporting affidavit. The Applicant further stated that the Applicant’s file could not be traced in his advocates because it had not been surrendered to the Applicant’s advocates office by an advocate who had left the employment of that office. The same was later traced when the time to file the record of appeal had lapse.
3. I have carefully considered the grounds set out on the face of the motion and the facts deponed in the supporting affidavit plus the oral submissions of the Applicant’s learned counsel. It is apparent from the record that on June 2nd July 2012 the notice of appeal was filed. It is also stated that copies of proceedings and judgement were not ready in time and the Applicant was therefore prompted to apply to be given a certificate of delay. The Applicant avers that the delay in filing of appeal was due to inadvertent mistake occasioned by the missing of the Applicant’s office file which has since been retrieved from an advocate who left the firm of Otieno Arum & Co. Advocates.
4. The Applicants’ averments were never controverted by the Respondents, therefore I have no reason to doubt the veracity of those averments. I find the reasons advanced by the Applicant in support of the motion to be plausible.
5. In the end, the motion is allowed as prayed. Consequently the Applicant is granted 10 days from the date hereof to file an appeal out of time. Costs of the motion shall abide the outcome of the intended appeal.
Dated, Signed and Delivered in open court this 22nd day of April, 2016
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Applicant
..................................................... for the Respondent