[2011] KEHC 666 (KLR)
The court found that although the delay in filing the memorandum of appeal was substantial, the explanation provided by the appellant was reasonable and the delay was attributable to counsel rather than the appellant himself. The court held that it would be unjust to penalize the appellant for the mistakes of his...
Source-derived case information.
- Citation
- [2011] KEHC 666 (KLR)
- Parties
- Appellant: Johnson Musengi; Respondent: Joseph Mwangi Ndirangu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 223 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to File Appeal
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Mistake of Counsel, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Musengi
Appellant
Joseph Mwangi Ndirangu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the court should exercise its discretion to enlarge time for filing an appeal after the statutory period has lapsed.
- 2 Whether the delay in filing the memorandum of appeal was sufficiently explained and attributable to counsel rather than the appellant.
- 3 Whether the appellant should be penalized for the mistakes of his counsel.
Ratio Decidendi
The court found that although the delay in filing the memorandum of appeal was substantial, the explanation provided by the appellant was reasonable and the delay was attributable to counsel rather than the appellant himself. The court held that it would be unjust to penalize the appellant for the mistakes of his counsel, especially since the appellant had given appropriate instructions and the appeal appeared arguable on its face. Exercising its discretion under Section 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules, the court allowed the application for enlargement of time and granted the orders sought in the notice of motion, subject to the appellant...
Court Disposition
application allowed
Orders
- Application for enlargement of time to file appeal is allowed in terms of prayer 2 and 3 of the notice of motion dated 22nd March, 2011.
- The appellant shall pay costs of the application to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 223 OF 2010
JOHNSON MUSENGI........................................................................................APPELLANT
VERSUS
JOSEPH MWANGI NDIRANGU.......................................................................DEFENDANT
R U L I N G
1. Section 95 of the Civil Procedure Act provides for enlargement of time as follows:
“95. Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
That provision gives unfettered discretion to the court to enlarge time. Order 50 Rule 5 of the Civil Procedure Rules 2010 which also deals with the power to enlarge time also gives unfettered power to the court “to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed………”
2. Johnson Musengi the appellant intends to appeal against a ruling delivered on 8th April, 2010. His appeal ought to have been filed within 30 days. A memorandum of appeal was however not filed until 14th October, 2010. The explanation that has been given for this delay as contained in the supporting affidavit is firstly the delay in obtaining the certified copies of the proceedings, ruling and order extracted and secondly, the delay arising from communication between the appellant’s counsel who are based in Nairobi and the advocates in Mombasa whom they entrusted to pursue the matter on their behalf.
3. There is no doubt that the delay is substantial. However, an explanation has been given. The explanation is not unreasonable. The explanation also shows that the delay is not attributable to the appellant, but has been caused by counsel. In my view the appellant appears to have given appropriate instructions but was let down by his counsel. I do not think it would be fair or just to shut out the appellant because of the mistake of counsel.
4. The appellant has filed a memorandum of appeal which on the face of it appears arguable. I think it is only proper that the appellant be given a chance to be heard on merit. I do therefore allow the application and issue orders in terms of prayer 2 and 3 of the notice of motion dated 22nd March, 2011. The appellant shall pay costs of the application to the respondent.
Orders accordingly.
Dated, signed and delivered this 21st day of November, 2011.
H. M. OKWENGU
JUDGE
In the presence of:
Koech H/B for Ramta for the Appellant
Kinyanjui for the Respondent
Kiponda Court Clerk