[2010] KEHC 297 (KLR)
The court found that the applicant had provided a reasonable explanation for the initial delay, as the proceedings were not supplied until 3/6/2010 despite timely request and payment. The subsequent three-week delay in filing the application was not considered inordinate by the court. The court also noted that the...
Source-derived case information.
- Citation
- [2010] KEHC 297 (KLR)
- Parties
- Applicant: John Kaniu; Respondent: Jason Bundi Gitari
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 78 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- J Karanja
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kaniu
Applicant
Jason Bundi Gitari
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the delay of three weeks after receipt of the certificate of delay is inordinate.
- 3 Whether leave to appeal out of time should be granted.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the initial delay, as the proceedings were not supplied until 3/6/2010 despite timely request and payment. The subsequent three-week delay in filing the application was not considered inordinate by the court. The court also noted that the intended appeal was not frivolous, as the lower court's ruling was sketchy and lacked sufficient reasoning. Balancing these factors, the court exercised its discretion to grant leave to appeal out of time, finding the application merited.
Court Disposition
application allowed
Orders
- Leave to file appeal out of time is granted.
- The appeal shall be filed within 15 days from the date of this ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CIVIL APPLICATION NO. 78 OF 2010
JOHN KANIU………….………..………………………….APPLICANT
VERSUS
JASON BUNDI GITARI……………..………………….RESPONDENT
R U L I N G
The Applicant herein is seeking this court’s leave to file an appeal out of time. The Ruling in question was delivered on 18/11/2009. The proceedings were requested for and deposit for the same paid on 23/11/2009. The proceedings were nonetheless not availed to counsel for the Applicant until 3/6/2010. He filed this Application on 29/6/2010. The certificate of delay is annexed to the supporting Affidavit and so is the impugned ruling and the draft Memorandum of Appeal.
The Application is nonetheless opposed by the Respondent who states that the Applicant filed the Application 3 weeks after receiving the certificate of delay.
He says that the 3 weeks delay has not been explained and the Application should therefore be dismissed.
I have considered the application along with the rival affidavits and the annextures thereto. I have seen the Ruling in question. The same is quite sketchy and the magistrate did not actually give the reasons for arriving at the same. He merely said that there was no misconduct. He did not address fully the issues raised by the applicant to enable him make an informed decision on the same. In my view the intended Appeal is not frivolous. Further, a delay of 3 weeks cannot be said to be inordinate by any standards. I therefore find the application merited. I allow the same and grant the leave sought. The Appeal be filed within 15 days from the date hereof. Each party to bear the costs of this Application.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 24th day of November 2010
In presence of:- Mr. Mwai for Mr. Ndana for Applicant & Respondent in person.