[2019] KEHC 8385 (KLR)
The court found that the delay in filing the appeal was slightly over three months but was not unreasonable given the circumstances. The delay was attributed to the inadvertent mistake of the applicant's counsel in misplacing the file, which delayed communication and instructions to appeal. The court held that the...
Source-derived case information.
- Citation
- [2019] KEHC 8385 (KLR)
- Parties
- Applicant: John Ngugi Muthoni; Respondent: Irungu Peter; Respondent: Francis Muthaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 474 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- LM Njuguna
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Mistake of Counsel, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ngugi Muthoni
Applicant
Irungu Peter
Respondent
Francis Muthaura
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 appeal out of time against the judgment of the subordinate court.
- 2 Whether the delay in filing the appeal was reasonable and excusable.
- 3 Whether the respondents would suffer prejudice if leave is granted.
Ratio Decidendi
The court found that the delay in filing the appeal was slightly over three months but was not unreasonable given the circumstances. The delay was attributed to the inadvertent mistake of the applicant's counsel in misplacing the file, which delayed communication and instructions to appeal. The court held that the applicant should not be penalized for the advocate's mistake. Further, the court determined that the respondents would not suffer prejudice if leave was granted, whereas the applicant would suffer greater prejudice if denied the opportunity to appeal. Applying the principles from Section 79G of the Civil Procedure Act and the Thuita Mwangi case, the court exercised its...
Court Disposition
application allowed
Orders
- Prayer i) of the Motion is allowed; the applicant is granted leave to file and serve the memorandum and record of appeal within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. 474 OF 2018
JOHN NGUGI MUTHONI.........................................APPLICANT
-VERSUS-
IRUNGU PETER.............................................1ST RESPONDENT
FRANCIS MUTHAURA................................2ND RESPONDENT
RULING
1. The cause of action in this matter, arose out of a road traffic accident involving the appellant/applicant that occurred on or about the 18th of December, 2010. Consequently, the said appellant/applicant filed a suit against the respondents in CMCC NO. 2796 OF 2012 seeking both general and special damages for injuries sustained as a result of the accident.
2. Ultimately, the trial court vide its judgment of 6th June, 2018 dismissed the applicant’s suit and the applicant is desirous of appealing against the said judgment.
3. Before me now for determination, is an ex parte Notice of Motion dated 12th September, 2018 and filed by the applicant. The same stands supported by the grounds set out on its face and the affidavit sworn by Irine N. Sikuku. The applicant is seeking leave of this court to lodge an appeal against the aforementioned judgment and an order that the draft memorandum of appeal annexed to the application be deemed as duly filed and served.
4. It is the deponent’s assertion that upon delivery of the judgment, the applicant’s file was misplaced hence resulting in a delay in informing him of the outcome of his case and in turn delayed the receipt of instructions to file an appeal in good time.
5. The Motion was canvassed through written submissions which I have duly considered together with the cited authorities, the facts as deponed on the face of the Motion and its supporting affidavit.
6. Having done so, I turn to Section 79G of the Civil Procedure Act which stipulates that a party desirous of appealing against the decision of a subordinate court should file an appeal within 30 days from the date of the judgment.
7. Since it is not in dispute that the time for lodging an appeal has since lapsed, the elements to be considered by this court in determining whether or not to grant the applicant leave to appeal out of time are well established in the Court of Appeal case of Thuita Mwangi v Kenya Airways Limited [2003] eKLR as follows:
a. the length of delay;
b. the reason for the delay;
c. whether the appeal is arguable; and
d. the degree of prejudice that will befall the respondent.
8. In respect to the first element, the record confirms that the Motion has been brought slightly over three (3) months since the delivery of the impugned judgment. Whereas there has been a delay, I do not find the same to be unreasonable.
9. In addressing the second element, I turn my attention to the explanation given in the supporting affidavit and echoed in the submissions in this respect, save to add that the mistake was on the part of the applicant’s counsel.
10. I am alive to the legal principle that the mistake of an advocate should not be visited on the client. In this instance, there is no doubt in my mind that there was an inadvertent error on the part of the advocate and the same has been acknowledged. It is therefore clear that the applicant should not be faulted for the same.
11. This brings me to the other element. It is the applicant’s submission that the respondents will not suffer any prejudice if the applicant is granted leave to file his appeal out of time.
12. It is noteworthy that the applicant’s suit before the trial court was dismissed with costs to the respondents. In the premises, I am therefore satisfied that the applicant stands to suffer a greater deal of prejudice if denied the chance of appealing against the judgment while on the flip side, it is unlikely that the respondents will be prejudiced.
13. In the end, prayer i) of the Motion is allowed. The applicant is hereby ordered to file and serve the memorandum and record of appeal within 30 days from today.
Dated, signed and delivered at NAIROBI this 28th day of March, 2019
.......................
L. NJUGUNA
JUDGE
In the presence of:
......................................for the Applicant
................for the 1st and 2nd Respondents