[2014] KEHC 7696 (KLR)
The court found that the applicant had demonstrated good and sufficient cause for not filing the appeal within the prescribed time, as judgment was delivered without notice to the parties and the applicant only became aware of it several months later. The application for leave to appeal out of time was unopposed...
Source-derived case information.
- Citation
- [2014] KEHC 7696 (KLR)
- Parties
- Applicant: John Mungai Thuku; Respondent: Humphrey Muiru Thuku; Respondent: Muiru Thuku Muiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1118 of 2003
- Procedural Posture
- Miscellaneous Application / Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Specific Performance, Service of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mungai Thuku
Applicant
Humphrey Muiru Thuku
Respondent
Muiru Thuku Muiru
Respondent
Procedural Posture
Miscellaneous Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for not filing the appeal within the prescribed time.
- 2 Whether leave to appeal out of time should be granted under section 79G of the Civil Procedure Act.
Ratio Decidendi
The court found that the applicant had demonstrated good and sufficient cause for not filing the appeal within the prescribed time, as judgment was delivered without notice to the parties and the applicant only became aware of it several months later. The application for leave to appeal out of time was unopposed despite proper service. The court exercised its discretion under section 79G of the Civil Procedure Act to allow the application and grant the leave sought, directing the applicant to file the memorandum of appeal within 14 days of the ruling.
Court Disposition
application allowed
Orders
- Leave to appeal out of time is granted.
- The applicant shall file his memorandum of appeal within 14 days of delivery of this ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO 1118 OF 2003
(APPLICATION FOR LEAVE TO APPEAL OUT OF TIME)
JOHN MUNGAI THUKU ...........................................APPLICANT
V E R S U S
HUMPHREY MUIRU THUKU
MUIRU THUKU MUIRU……………..………….RESPONDENT
R U L I N G
1. This is an application under section 79G of the Civil Procedure Act, Cap 21(the Act) for leave to appeal out of time against the decree in Kiambu CMCC No. 94 of 2012. The Applicant was the defendant in that suit while the Respondents were the plaintiffs. Judgment was delivered on 9th May 2014. By that judgment the plaintiffs were permitted to enforce specific performance of a contract for sale of land.
2. It is the Applicant’s case in this application that judgment was delivered without notice to any party and that he learnt about it on 15th October 2013. The present application was filed about a month later on 22nd November 2013.
3. The application appears to have been duly served upon the Respondents (see affidavit of service by one William Kung’u Mundia filed on 18th February 2014). The copy of the application served had the hearing date (18th February 2014) endorsed thereon. No papers in response to the application were filed.
4. Under the proviso to section 79G aforesaid the Court has the power to admit an appeal out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
5. In the present case I am satisfied that the delay in the delivery of judgment and subsequent delivery of the same without notice to the parties constitutes good and sufficient cause for the Applicant not filing the appeal in time. At any rate the application is unopposed despite service upon the Respondents.
6. In the circumstances I will allow the application and grant the leave sought. The Applicant shall file his memorandum of appeal within 14 days of delivery of this ruling. Costs of the application shall be in the appeal. If ultimately no appeal is filed, there will be no orders as to costs of the application. Those will be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 11th DAY OF MARCH 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 17TH DAY OF MARCH 2014