[2017] KEHC 846 (KLR)
The court found that the applicant failed to provide a certificate of delay from the lower court to justify the late filing of the appeal. The medical evidence presented indicated that the applicant had completed treatment for tuberculosis and was declared cured long before the judgment was delivered. The court was...
Source-derived case information.
- Citation
- [2017] KEHC 846 (KLR)
- Parties
- Applicant: Joseph Mbogo; Respondent: David Kamau Samuel; Respondent: Daniel Irungu Samuel (thru’ his appointed attorney Carol Njoki Kinyanjui)
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 44 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time, Appeals, Delay in Filing, Good and Sufficient Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Mbogo
Applicant
David Kamau Samuel
Respondent
Daniel Irungu Samuel (thru’ his appointed attorney Carol Njoki Kinyanjui)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for the delay in filing the appeal out of time.
- 2 Whether the application for extension of time to appeal should be granted.
Ratio Decidendi
The court found that the applicant failed to provide a certificate of delay from the lower court to justify the late filing of the appeal. The medical evidence presented indicated that the applicant had completed treatment for tuberculosis and was declared cured long before the judgment was delivered. The court was not satisfied that the applicant's peptic ulcer disease prevented him from pursuing the appeal. Consequently, the applicant did not demonstrate good and sufficient cause for the delay, and the application for extension of time to appeal was dismissed.
Court Disposition
application dismissed
Orders
- The application by notice of motion dated 20/06/2014 is dismissed with costs to the 2nd respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
MISC CIVIL APPLICATION NO 44 OF 2014
JOSEPH MBOGO..............................................................APPLICANT
VERSUS
1. DAVID KAMAU SAMUEL
2. DANIEL IRUNGU SAMUEL(thru’ his appointed attorney
CAROL NJOKI KINYANJUI)...................................RESPONDENTS
R U L I N G
1. The Applicant herein, Joseph Mbogo (who was the plaintiff before the trial court) has sought by notice of motion dated 20/06/2014, in effect, an order for extension of time to lodge appeal against the judgment (wrongly labeled as a ruling) and decree of the lower court passed on 26/11/2012 by which the plaintiff’s suit against the Respondents (who were the defendants) was dismissed with costs to the 2nd Respondent, Daniel Irungu Samuel (2nd defendant). The application is supported by the Applicant’s affidavit annexed thereto.
2. The 1st Respondent, who is the Applicant’s son, has not filed anything in response to the application. But the 2nd Respondent (who is the Applicant’s brother) filed a replying affidavit on 01/02/2016 through his appointed attorney, Caroline Njoki Kinyanjui (his daughter).
3. I have read the affidavits sworn in support of and in opposition to the application. I have also considered the parties’ submissions. They were all unrepresented by counsel.
4. The decree sought to be appealed against having been passed on 26/11/2012, appeal should have been lodged within 30 days thereof (excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order). See section 79G of the Civil Procedure Act, Cap 21. But under the proviso to that section an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
5. The Applicant’s present application was filed on 23/06/2014. That means that he is about 1½ years out of time. He has explained that delay in two ways –
(a) That the lower court delayed in supplying him with certified copies of the proceedings and judgment, which were supplied on 28/01/2013.
(b) That by that time he was unwell and undergoing treatment for about a year.
6. To begin with the Applicant has not exhibited any certificate of delay from the lower court. The appeal should thus have been filed on or before 26/12/2012. Secondly, the medical document dated 25/04/2014 annexed to the application shows that that Applicant was diagnosed with pulmonary tuberculosis on 20/04/2011. He was on treatment for the next 6 months. He thus completed his treatment long before his case was heard and the judgment he now seeks to appeal against passed on 26/11/2012. He was declared cured of the tuberculosis on 04/10/2011! He had developed peptic ulcer disease during his treatment for the PTB. It has not been shown how the peptic ulcer disease could have prevented him from pursuing his case.
7. The Applicant has not satisfied this court that he had good and sufficient cause for not filing his appeal in time. His application by notice of motion dated 20/06/2014 has no merit. It is hereby dismissed with costs to the 2nd Respondent. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 16TH DAY OF MARCH 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 24TH DAY OF MARCH 2017