[2017] KEHC 992 (KLR)
The court found that the delay in filing the appeal was minimal (about six days) and was satisfactorily explained by the illness of the advocate responsible for the matter. The applicant demonstrated an arguable appeal and a right to challenge the judgment. In the absence of opposition from the respondent and...
Source-derived case information.
- Citation
- [2017] KEHC 992 (KLR)
- Parties
- Applicant: John Njue; Respondent: Margery Wawira Kiarago
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 109 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- FN Muchemi
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Mistake of Advocate, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njue
Applicant
Margery Wawira Kiarago
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 lower court.
- 2 Whether the delay in filing the appeal was sufficiently explained and excusable.
- 3 Whether interim stay of execution should be granted pending the filing of the intended appeal.
Ratio Decidendi
The court found that the delay in filing the appeal was minimal (about six days) and was satisfactorily explained by the illness of the advocate responsible for the matter. The applicant demonstrated an arguable appeal and a right to challenge the judgment. In the absence of opposition from the respondent and considering the explanation provided, the court exercised its discretion to allow the application for extension of time. The court also granted interim stay of execution pending the filing of the intended appeal and a formal application for stay, finding that refusal to grant the orders could render the appeal nugatory.
Court Disposition
application allowed
Orders
- Leave to appeal out of time is granted; the intended appeal must be filed within 7 days from the date of the ruling.
- Interim stay of execution is granted for 7 days pending the filing of the appeal and a formal application for stay of execution.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CIVIL APPLICATION NO. 109 OF 2017
JOHN NJUE………………..................................…....APPLICANT
VERSUS
MARGERY WAWIRA KIARAGO ..........................RESPONDENT
R U L I N G
1. This is a ruling on a notice of motion dated 4/12/2017 seeking for leave to appeal out of time against the judgment of Hon. Gicheru, Chief Magistrate delivered on 30/10/2017 in Embu CMCC No. 15 of 2015.
2. The motion is grounded on the affidavit of Pauline Waruhiu who describes herself as the Claims Director of Directline Assurance Company Limited the insurers of motor vehicle registration No. KAV 079 U belonging to the applicant. She deposes that judgment was entered against the defendant at 100% liability. The defendant was also ordered to pay KShs.1,178,598/= plus costs of the suit and interest at court rates.
3. Being aggrieved by the judgment, the applicant instructed their advocates M/s Kairu & McCourt to file an appeal which they failed to do within the time limit of 30 days. The advocate concerned prepared the memorandum of appeal on time but before he filed it, he was taken seriously ill. The colleague who took over was not briefed of the matter. By the time the advocate who had the conduct of the matter reported back to work the time for filing an appeal had lapsed.
4. There is need for extension of time to appeal and this court is empowered under Section 95 of the Civil Procedure Act and Order 50 Rule 5 to enlarge time. The delay was inadvertent and is highly regretted. The applicants should not be penalized for the mistakes of the advocates. The applicant intends to appeal against both liability and quantum.
5. The respondent was served with the application but did not file a replying affidavit. M/s Duncan Muyodi & Co. filed a notice of appointed on 13/12/2017. The application is therefore unopposed.
6. The judgment in this case was delivered on 30/10/2017 and the application was filed on 5/12/2017 which translates into a delay of about six days. It has been explained that the counsel who had prepared the memorandum of appeal was taken ill and the one who took over was not briefed of the matter. Considering that the delay was for a few days, the court is satisfied with the explanation given by the applicant.
7. The applicant has explained that he was dissatisfied and aggrieved by the whole judgment against which he intends to appeal. He has a right to appeal against the orders of the learned magistrate. From the explanation given and the documents attached and in the absence of any evidence to the contrary, the court is satisfied that the applicant has an arguable appeal. In the event that the orders sought are not granted, this appeal may be rendered nugatory.
8. I find the application merited and it is hereby allowed as prayed.
9. The intended appeal should be filed within 7 days from the date of this ruling. During the 7 days period, this court grants interim stay pending the filing of the appeal and a formal application for stay of execution.
10. Since the application was not opposed, there will be no order as to costs.
DATED, DELIVERED AND SIGNED AT EMBU THIS 20TH DAY OF DECEMBER, 2017.
F. MUCHEMI
JUDGE
In the presence of:-
Ms. Muriuki for Okwaro for respondent