[2008] KEHC 1607 (KLR)
The court found that the applicant had explained the delay in filing the appeal, as he was not served with notice of the ruling's delivery and acted promptly upon learning of it. The supporting documents, including the letter requesting proceedings and the receipt for payment, corroborated the applicant's...
Source-derived case information.
- Citation
- [2008] KEHC 1607 (KLR)
- Parties
- Applicant: John Muriu Ngigi; Respondent: Alice Wambui Kahonu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals Out of Time, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muriu Ngigi
Applicant
Alice Wambui Kahonu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the appeal out of time.
- 2 Whether leave should be granted to file an appeal out of time under Order XLIX Rule 5 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
Ratio Decidendi
The court found that the applicant had explained the delay in filing the appeal, as he was not served with notice of the ruling's delivery and acted promptly upon learning of it. The supporting documents, including the letter requesting proceedings and the receipt for payment, corroborated the applicant's explanation. The court held that the delay was not inordinate and that it was fair and just to grant the applicant an opportunity to present his appeal. Consequently, leave was granted to file the intended appeal within 15 days from the date of the ruling.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the intended appeal within 15 days from the date hereof.
- Costs of this application shall be costs in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Civ. Appli. 5 of 2007
JOHN MURIU NGIGI……………………..…….... APPLICANT
VERSUS
ALICE WAMBUI KAHONU….………………..RESPONDENT
R U L I N G
John Muriu Ngigi (hereinafter referred to as the applicant) has come to this court under Order XLIX Rule 5 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking leave of this court to file an appeal out of time. The applicant explains that he had filed an application in the lower court in respect of which ruling was to be delivered on 26th September, 2006. The ruling was however not delivered as the trial magistrate was on leave. On 7th December 2006, the applicant was served with a notice to show cause, upon which he consulted his advocate. The advocate perused the court record and discovered that the ruling was delivered against the applicant on the 13th November, 2006. The applicant maintains that no notice of delivery of the ruling was served upon him. The applicant’s advocate immediately applied for a copy of the proceedings and ruling. He received the same on the 15th December, 2006 by which time the period for filing the appeal had already lapsed. The applicant therefore urges the court to extend time to enable him file the appeal.
The application was served on Alice Wambui Kahonu, who is the respondent to the intended appeal. The respondent objects to the application maintaining that the applicant is guilty of latches and that the delay is unreasonable and inordinate. It is further contended that the application is only intended to deprive an innocent child of his statutory and constitutional rights.
I have considered the application. I note that the ruling subject of the intended appeal is alleged to have been delivered on 13th November, 2006 and therefore the applicant’s appeal ought to have been filed by 13th December, 2006. Although the applicant has not annexed the certificate of delay he had annexed a letter addressed to the Chief Magistrate Thika Law Courts applying for proceedings and ruling. That letter was received by the court on 8th December, 2006. A receipt which is also annexed shows that payment for the proceedings was made on the 11th December, 2006. The applicant’s advocate maintains that he received the proceedings on the 15th December, 2006. I find that the delay in filing the appeal has been explained and that the delay was not inordinate. In the circumstances, it is only fair and just that the applicant be given an opportunity to present his appeal.
Accordingly, I allow the application and grant leave to the applicant to file his intended appeal within 15 days from the date hereof. Costs of this application shall be costs in the appeal.
Orders accordingly.
Dated and delivered this 24th day of September, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Ngechu H/B for the applicant
Mungai H/B for the respondent