[2008] KEHC 864 (KLR)
The court found that the applicant was not notified of the judgment's delivery and only learned of it after his advocate received a letter from the respondent's advocate. The applicant acted promptly upon learning of the judgment, and the subsequent delay was due to the time taken to obtain typed proceedings and the...
Source-derived case information.
- Citation
- [2008] KEHC 864 (KLR)
- Parties
- Applicant: John Ngunia Muraguri; Respondent: Immaculate Waithera Kariuki; Respondent: Charles Henia Chege
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 107 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Judges
- MM Kasango, MSA Makhandia
- Legal Topics
- Extension of Time, Appeals Process, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ngunia Muraguri
Applicant
Immaculate Waithera Kariuki
Respondent
Charles Henia Chege
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment of the Chief Magistrate's Court.
- 2 Whether the delay in filing the appeal was sufficiently explained by the applicant.
Ratio Decidendi
The court found that the applicant was not notified of the judgment's delivery and only learned of it after his advocate received a letter from the respondent's advocate. The applicant acted promptly upon learning of the judgment, and the subsequent delay was due to the time taken to obtain typed proceedings and the judgment from the lower court, as evidenced by the certificate of delay. The court held that, in the interests of justice, leave should be granted to file the appeal out of time. The respondent's request for a deposit of the decretal amount as a condition for extension was rejected as inappropriate without a formal application.
Court Disposition
application allowed
Orders
- The applicant John Ngunia Muraguri is granted leave to file his appeal out of time within 21 days from the date hereof in respect of Chief Magistrate’s case at Nyeri Civil Case No. 144 of 2004.
- The cost of the Notice of Motion dated 27th May 2006 shall abide with the intended appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc. Civ. Appli. 107 of 2006
JOHN NGUNIA MURAGURI....…………….... PLAINTIFF
VERSUS
1. IMMACULATE WAITHERA KARIUKI )
2. CHARLES HENIA CHEGE ).….. DEFENDANTS
RULING
The Applicant has brought an application under section 79G of the Civil Procedure Act and Order XLIX rule 5 of the Civil Procedure Rules. The applicant seeks an order for time to be extended in which to file a Memorandum of Appeal against the judgment of the Chief Magistrate’s Court Nyeri Civil Case No. 144 of 2004. It is deponed by the applicant in his supporting affidavit that the judgment of the court in that case was delivered on 29th November 2005 without notice to him and his advocate. That that judgment was delivered after several adjournments. He was informed by his advocate of the outcome of that case by a letter dated 16th February 2006 which letter he received in mid March 2006. He was dissatisfied with that judgment and instructed his advocate to file an appeal. His advocate applied for lower court proceedings to be typed on 10th April 2006. The proceedings and a copy of the judgment were ready for collection in the lower court on 5th May 2006. Indeed he annexed a certificate of delay to the application showing that the proceedings and judgment were supplied on that day. The application was opposed by the Respondent. It was deponed in the Respondent’s Replying Affidavit that the Applicant had failed to explain the delay from the date his advocate was informed of the judgement upto the date when the application was made.
I have considered the application, the affidavit in support and the Replying affidavit. It is not denied that the lower court’s judgment was delivered without notice to the applicant. It does seem that the Applicant’s advocate got information about that judgment from a letter written to him dated 13th February 2006 by the Respondent’s advocate. The Applicant’s advocate informed that Applicant by a letter dated 16th February 2006 but which was not received by the Applicant until mid March 2006. The proceedings and judgment were applied for on 10th of April. They were not ready for collection until 5th May 2006. Bearing the factors that surrounded the delivery of judgment without notice I am of the view that it is in the interest of justice to grant leave to the Applicant to file his appeal out of time. The request by the Respondent to have the Applicant deposit the decretal amount as a condition for the extension of time without a formal application would in my view be odious to the Applicant. Accordingly the order of this court is that the Applicant John Ngunia Muraguri is hereby granted leave to file his appeal out of time within 21 days from this date hereof in respect of Chief Magistrate’s case at Nyeri Civil Case No. 144 of 2004. The cost of Notice of motion dated 27th May 2006 shall abide with the intended appeal.
MARY KASANGO
JUDGE
Dated and delivered at Nyeri this 27th day of October 2008.
BY
M. S. A. MAKHANDIA
JUDGE