[2018] KEHC 6390 (KLR)
The court found that the applicants had provided a plausible and satisfactory explanation for the delay in filing the appeal, namely, the late supply of typed proceedings and judgment by the court. The motion for leave to appeal out of time was filed slightly over a month after the documents were supplied, which the...
Source-derived case information.
- Citation
- [2018] KEHC 6390 (KLR)
- Parties
- Applicant: Joseph Njoroge; Applicant: Tabitha Nyambura; Applicant: Jemimah Chege; Applicant: John Kagiri Kimako; Applicant: John Chee Ndonga; Applicant: Grace Njuguna Ndonga; Respondent: Paul Nduti (Chairman); Respondent: Elikanah Kamau (Secretary); Respondent: Joseph Ngure (Treasurer)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 299 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Leave to Appeal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njoroge
Applicant
Tabitha Nyambura
Applicant
Jemimah Chege
Applicant
John Kagiri Kimako
Applicant
John Chee Ndonga
Applicant
Grace Njuguna Ndonga
Applicant
Paul Nduti (Chairman)
Respondent
Elikanah Kamau (Secretary)
Respondent
Joseph Ngure (Treasurer)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in the circumstances.
Ratio Decidendi
The court found that the applicants had provided a plausible and satisfactory explanation for the delay in filing the appeal, namely, the late supply of typed proceedings and judgment by the court. The motion for leave to appeal out of time was filed slightly over a month after the documents were supplied, which the court considered timely in the circumstances. The respondents did not dispute the reason for the delay but only challenged the period taken to file the application. The court held that the applicants had met the threshold for grant of leave and allowed the application, granting the applicants 15 days to file their appeal out of time. Each party was ordered to bear its own costs.
Court Disposition
application allowed
Orders
- Applicants granted leave of 15 days to file an appeal out of time.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC. APPL. NO. 299 OF 2015
JOSEPH NJOROGE................................................................................1ST APPLICANT
TABITHA NYAMBURA.........................................................................2ND APPLICANT
JEMIMAH CHEGE................................................................................3RD APPLICANT
JOHN KAGIRI KIMAKO.....................................................................4TH APPLICANT
JOHN CHEE NDONGA.........................................................................5TH APPLICANT
GRACE NJUGUNA NDONGA.............................................................6TH APPLICANT
(All suing in their capacity as member of the Muikamba Welfare Self Help Group)
-V E R S U S –
PAUL NDUTI -CHAIRMAN................................................................1st RESPONDENT
ELIKANAH KAMAU –SECRETARY..............................................2ND RESPONDENT
JOSEPH NGURE – TREASURER...................................................3RD RESPONDENT
(Being sued in their capacity as the officials of the Muikamba Welfare Self Help Group)
RULING
1) The applicants herein took out the motion dated 10. 7.2015 in which they sought for inter alia leave to appeal out of time. The motion is supported by the affidavit of Namada Simoni. The respondents filed the replying affidavit of Paul Nduti to oppose the motion. When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submissions.
2) I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application plus the rival written submissions. It is the submission of the applicants that on 18. 11. 2014 judgement in the sum of ksh.1,134,000/= was delivered in favour of the respondents and against the applicants.
3) The applicants aver that they immediately applied for certified copies of proceedings and judgment which were supplied on 29. 5.2015, long after the time to appeal had lapsed. It is for this reason that the applicants are now seeking for leave to appeal out of time.
4) The respondents have strenuously opposed the application claiming that the same was filed after an inordinate delay.
5) It is important to note that the respondents do not deny the applicants’ averment that the failure to file the appeal within time was due to the failure by the court to supply typed proceedings and judgment on time. The main contention raised by the respondent is that the application for leave was filed after an ordinate delay.
6) It is not in dispute that the typed proceedings and judgment were supplied to the applicants on 29. 5.2015. The current motion was filed on 14. 7.2015, a period slightly over a month. I am convinced that the application for leave to appeal out of time was filed timeoulsy. I am also satisfied that the applicants have offered a plausible reason which delayed them from filing the appeal within the statutory period required to file appeals. Consequently, I grant the applicants leave of 15 days to file an appeal out of time. In the circumstances of this matter, I think a fair order on costs is to direct which I hereby order that each party bears its own costs.
Dated, Signed and Delivered in open court this 4th day of May, 2018.
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Applicant
..................................................... for the Respondent