[2007] KEHC 1460 (KLR)
The court found that although the appeal was filed out of time and the applicant delayed a further 8 months after being notified of the lateness, the explanation provided was reasonable. The applicant, a layman, had instructed his advocate in time and was unaware of the procedural lapse. The court exercised its...
Source-derived case information.
- Citation
- [2007] KEHC 1460 (KLR)
- Parties
- Applicant: John Mwangi Kariuki; Respondent: Gladys Njeri Waigwa; Respondent: Christobel Wanjiku; Respondent: Idah Nyaguthii Kimaru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 116 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- MM Kasango
- Legal Topics
- Extension of Time, Appeals Process, Mistake of Advocate, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangi Kariuki
Applicant
Gladys Njeri Waigwa
Respondent
Christobel Wanjiku
Respondent
Idah Nyaguthii Kimaru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the delay in filing the appeal was excusable under the circumstances.
Ratio Decidendi
The court found that although the appeal was filed out of time and the applicant delayed a further 8 months after being notified of the lateness, the explanation provided was reasonable. The applicant, a layman, had instructed his advocate in time and was unaware of the procedural lapse. The court exercised its discretion in favour of the applicant, holding that the delay was excusable and that justice would be served by allowing the appeal to proceed. The court further noted that the present application was filed by the applicant in person, indicating a lack of awareness of the consequences of the delay. Accordingly, the court granted leave to file the appeal out of time.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The Appellant’s appeal No. 145 of 2003 is deemed as filed within time.
- The costs of the Notice of Motion dated 20th May 2006 are awarded to the Respondent in the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NYERI
Misc Civil Appli 116 of 2006
JOHN MWANGI KARIUKI..………..…….........……...……PLAINTIFF/APPLICANT
Versus
GLADYS NJERI WAIGWA…….…....…....……..1ST DEFENDANT/RESPONDENT
CHRISTOBEL WANJIKU ………….........….….2ND DEFENDANT/RESPONDENT
IDAH NYAGUTHII KIMARU……….........…....…3RD DEFENDANT/RESPONDENT
RULING
The Notice of Motion dated 20th March 2006 is brought under Sections 3A and 79G of the Civil Procedure Act. It seeks the prayer that this Court will grant leave to the Appellant to file the appeal out of time. In his short affidavit the Appellant says that being aggrieved by the decision of the Central Province Provincial Land Dispute Appeals Committee by their award of 15th January 2003 he instructed his then advocate Ms Maina Karingithi & Co. Advocates to file an appeal. That the said appeal through no fault of his was filed on 9th November 2003 which was beyond the 60 days period allowed for lodging an appeal. The applicant prayed that the mistakes of his advocate should not be visited on him. In their replying affidavit the Respondents opposed the application. They contended that the fact that the appeal was filed out of time was brought to the attention of the Appellant by the Court on 12th July 2005. The Appellant despite being so informed did not file the present application until 20th March 2006. Further they content that they have filed an application for execution of the judgment of the tribunal before the Karatina Court. They concluded that the Appellant by his application intends to delay the conclusion of the matter.
I have considered the application. It is indeed correct that the appeal was filed out of time and further after being informed of its lateness the Appellant did not file the application until 8 months later. The Appellant’s explanation for filing the appeal out of time is indeed understandable and does draw this Court to exercise its discretion in its favour. The Appellant being a layman says that he was unaware that his advocate had not filed the appeal in time. In view of the fact that he had instructed his advocate to file and according to him, his advocate failed to file it in time, I am of the view that the delay experienced in this matter is excusable. Indeed the present application for leave was filed by the Appellant in person. That being the case the Court is of the view that he might not have been aware of the consequences of that delay. I am of the view that justice in this matter will be well served by allowing the Appellant leave to appeal out of time. The orders of this court are as follows:
1. That the Appellant’s appeal No. 145 of 2003 be and is hereby deemed as filed within time.
2. That the costs of the Notice of Motion dated 20th May 2006 are awarded to the Respondent in the appeal.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 11th day of October 2007.
By M. S. A. MAKHANDIA
JUDGE