[2012] KEHC 5147 (KLR)
The court found that the applicant was not served with notice of the date for delivery of the lower court judgment and only became aware of the judgment after the time for appeal had expired. The respondent failed to controvert these facts or provide any substantive opposition. The court was satisfied that the...
Source-derived case information.
- Citation
- [2012] KEHC 5147 (KLR)
- Parties
- Plaintiff: Joram Apunda; Defendant: Ndetika Rural Sacco Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 362 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- DA Onyancha
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Service of Judgment Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joram Apunda
Plaintiff
Ndetika Rural Sacco Limited
Defendant
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.
- 2 Whether failure to serve notice of judgment delivery constitutes sufficient cause for extension of time.
Ratio Decidendi
The court found that the applicant was not served with notice of the date for delivery of the lower court judgment and only became aware of the judgment after the time for appeal had expired. The respondent failed to controvert these facts or provide any substantive opposition. The court was satisfied that the applicant had demonstrated sufficient cause for the delay and that the intended appeal raised arguable issues. In the interest of justice, the application for extension of time to appeal was allowed, subject to the applicant filing the appeal within 30 days.
Court Disposition
application allowed
Orders
- Application to extend time for appeal to be filed is hereby allowed.
- Applicant shall file his appeal within 30 days, in default of which the order shall stand discharged.
Full Case Text
Judgment text and source record
16 paragraphs
JORAM APUNDA. …………………………….............................………….…… PLAINTIFF
VERSUS
NDETIKA RURAL SACCO LIMITED. …..........................…….……….………. DEFENDANT
R U L I N G
This application dated 10/8/2011 seeks leave to appeal out of time. The Applicant who was the defendant in the lower court depones in his affidavit of support, that he was not served with notice of the date for delivery of the lower court judgment. He further depones that he became aware that judgment had been delivered after the prescribed period for filing appeals had expired. That he immediately filed this application for extension of time.
Although the application was properly served, the Respondent/decree-holder did not file a Replying Affidavit or Grounds of Opposition. Even, during the hearing of this application on 29/11/2011, Mr.Omao who represented the Respondents, did not give any reason for opposing the application. He did not either, controvert any of the facts upon which the application was grounded except to say that the Respondent opposed the application. The court accordingly takes the position that the application is not reasonably opposed.
I have also perused the would-be-grounds of Appeal. I am satisfied that they raise arguable issues in the circumstances.
For the above reasons, the application to expand time for appealing should be allowed in the interest of justice.
ORDERS
1)Application to extend time for appeal to be filed is hereby allowed.
2)Applicant shall file his appeal within 30 days, in default of which the order shall stand discharged.
3)Costs are in the cause.
Dated and delivered at Nairobi this 29th day of February, 2012.
…………………………………………
D A ONYANCHA
JUDGE