[2017] KEHC 2815 (KLR)
The court found that the applicant had made genuine efforts to obtain the ruling necessary to file his appeal and that the delay was occasioned by circumstances beyond his control. Recognizing the constitutional right to appeal, the court held that the applicant should not be barred from exercising this right on...
Source-derived case information.
- Citation
- [2017] KEHC 2815 (KLR)
- Parties
- Appellant: Joseph Kinyua; Respondent: G.O. Ombachi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 27 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kinyua
Appellant
G.O. Ombachi
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 applicant's delay in filing the appeal was justified by circumstances beyond his control.
Ratio Decidendi
The court found that the applicant had made genuine efforts to obtain the ruling necessary to file his appeal and that the delay was occasioned by circumstances beyond his control. Recognizing the constitutional right to appeal, the court held that the applicant should not be barred from exercising this right on account of procedural delay, especially where he demonstrated diligence. Accordingly, the court exercised its discretion to grant leave to file the appeal out of time, subject to the condition that the appeal be filed within 14 days from the date of the ruling.
Court Disposition
application allowed
Orders
- Applicant granted leave to file appeal out of time but not later than 14 days from date of ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL MISC. APP. NO. 27 OF 2017
JOSEPH KINYUA..................................................APPELLANT
VS
G.O.OMBACHI ...................................................RESPONDENT
RULING
Joseph Kinyua filed application dated 3rd April 2017 seeking leave to appeal out of time.
The application was supported by grounds on the face of the application and affidavit sworn on 3rd April 2017 spelling out efforts made to get ruling of the court delivered on 18th July 2014 in order to file appeal but was not successful.
The application was opposed by Respondent through a Replying Affidavit sworn by Okero Gilbert Ombachi on 8th May 2017. In a rejoinder the applicant filed a further supporting affidavit sworn on 27th June 2017 in which he did annex proof of efforts made to exercise right of appeal but was not able to do it within time for reasons beyond his control.
I have perused the application and the affidavits for both parties and annextures thereto and find that the right to appeal is a constitutional right and the applicant having made efforts to exercise the right he should not be shut out without considering the substance of his appeal.
Applicant granted leave to file appeal out of time but not later than 14 days from date of ruling.
HON. A.ONG’INJO
JUDGE
31. 8.2017
Before Adwera – Ong’injo Judge
C/A – Penina
Ms Wangwe Advocate holding brief for Ondari Advocate for Respondent
Applicant – Present in Person
Ruling Signed Delivered and Dated this 31st Day of August 2017.
HON A.ONG’INJO
JUDGE