[2015] KEHC 4332 (KLR)
The court found that the delay in filing the appeal was not inordinate and was satisfactorily explained by the applicant as being due to the delay in obtaining the lower court proceedings. The court considered the grounds of appeal and determined that they raised serious issues warranting consideration....
Source-derived case information.
- Citation
- [2015] KEHC 4332 (KLR)
- Parties
- Applicant: John Nzioka Kavela; Respondent: George Kimondiu; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 29 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Leave to Appeal, Delay in Filing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nzioka Kavela
Applicant
George Kimondiu
Respondent
Attorney General
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 sufficiently explained.
- 3 Whether the respondent would suffer prejudice if the application is granted.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate and was satisfactorily explained by the applicant as being due to the delay in obtaining the lower court proceedings. The court considered the grounds of appeal and determined that they raised serious issues warranting consideration. Additionally, the court held that any prejudice to the respondent could be compensated by damages. Applying the established principles for extension of time, the court exercised its discretion in favor of the applicant and granted leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- Leave to file an appeal out of time is granted to the applicant.
- Costs of the application awarded to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC. APPLICATION NO. 29 OF 2012
JOHN NZIOKA KAVELA.........................PLAINTIFF/APPLICANT
VERSUS
GEORGE KIMONDIU................1ST DEFENDANT/RESPONDENT
ATTORNEY GENERAL.............2ND DEFENDANT/RESPONDENT
RULING
1. This is an application for leave to file an appeal out of time. The delay in filing the appeal is blamed on delay in obtaining copies of the proceedings of the lower court file due to misplacement of the same.
2. The Respondents did not file any papers in opposition to the application.
3. During the hearing of the application, the Respondents did not attend court although they were served. The Applicant filed written submissions which I have duly considered.
4. The principles of the law to be considered on whether or not to allow an application to extend the time within which to appeal are settled. See for example Barclays Bank of Kenya Ltd vs Martha Karwirwa Antony (2010) eKLRwhere the Court of Appeal cited with approval the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi Civil Application No. 225 of 1997where it was stated as follows:
“It is now well settled that the decision whether or not to extend the time of appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are first the length of the delay, secondly the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted”.
5. The lower court ruling complained about was delivered on 4th November, 2011. The application herein was filed on 14th February 2012. Taking into account that time does not run during the period 21st December to the 13th of January, the delay was not inordinate and has been explained. I have looked at the grounds of appeal. The same raises serious issues which need to be ventilated. There is no prejudice that can be suffered by the Respondent which cannot be compensated by way of damages.
6. With the foregoing, I allow the application with costs to the Respondent.
………………………………………
B. THURANIRA JADEN
Dated and delivered at Machakos this 28th day of May, 2015
………………………………………
B. THURANIRA JADEN
JUDGE