[2004] KEHC 379 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as the delay was occasioned by the late supply of proceedings by the trial court, which was beyond the applicant's control. The court accepted the certificate of delay and the prompt application for proceedings...
Source-derived case information.
- Citation
- [2004] KEHC 379 (KLR)
- Parties
- Applicant: Joseph Oduor Bushuru; Respondent: Francis Masinde Wekesa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 102 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed in part; leave to appeal out of time granted on the ground of delay in obtaining proceedings.
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Appeals Out of Time, Ex Parte Judgment, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Oduor Bushuru
Applicant
Francis Masinde Wekesa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file an appeal out of time.
- 2 Whether delay in obtaining proceedings constitutes a valid ground for extension of time.
- 3 Whether lack of funds is a sufficient reason for extension of time.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as the delay was occasioned by the late supply of proceedings by the trial court, which was beyond the applicant's control. The court accepted the certificate of delay and the prompt application for proceedings as adequate justification. The court rejected the ground of lack of funds, noting that the applicant did not pursue the procedure for pauper suits under Order XXXII. The court also held that the merits of the intended appeal were not relevant at this stage. Consequently, the court exercised its discretion to allow the application for extension of time to appeal solely on the...
Court Disposition
Application allowed in part; leave to appeal out of time granted on the ground of delay in obtaining proceedings.
Orders
- The applicant shall file and serve the appeal within 10 days from the date hereof.
- The applicant shall pay thrown away costs of the motion assessed at Ksh.2,000 to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA MISC APPL. NO. 102 OF 2004
JOSEPH ODUOR BUSHURU …………… APPLICANT
VS
FRANCIS MASINDE WEKESA ……………. RESPONDENT
R U L I N G
The matter before this court is a motion taken out pursuant to the provision of Section 79 G of the Civil Procedure Act and Order XLIX. The applicant seeks for leave to appeal out of time against the order of 27th October 2003 dismissing the applicant’s application which application had sought to set-aside the ex-parte Judgment delivered by the same court on 19th June 2002.
The Respondent resisted the application by filing grounds of opposition under order L rule 16 of the civil procedure rules.
The facts of this matter are that the defendant/applicant was served with summons to enter appearance in a suit instituted by the respondent herein in respect of compensation for injuries suffered arising out of an assault on the respondent agreed at Ksh.10, 000 in an agreement duly executed by the parties.
It would appear the Respondent was granted leave to proceed with the case ex parte when the applicant failed to appear for hearing despite having been served with a hearing notice. Judgment was read to the parties on 20th June 2002. The Respondent sought to execute the decree by taking out a notice to show cause. The record reveals that Mr. Angima appeared for the defendant/applicant and sought for a reprieve of 3 weeks for his client to settle the decretal sum which request was granted by the trial court. When the period lapsed the Respondent applied to have the decree executed when the applicant failed to settle the decretal sum. The request was also granted by the trial court. This obviously prompted the applicant to file the motion dated 5th may 2003 in which the applicant sought to have the ex-parte Judgment set aside on various reasons set out in the motion and the supporting affidavit therein. The motion was heard and dismissed on 27. 10. 2003 by the trial court.
It would appear the applicant did not challenge on appeal the dismissal of that motion dated 5th May 2003 until time allowed for appeal lapsed thus the filing of this motion.
The applicant says that he did not obtain proceedings in time to file the appeal despite having applied for them in good time. He annexed in his affidavit in support of the motion the letter requesting for proceedings and a certified copy of the certificate of delay given by the trial court. The Respondent opposed this ground by accusing the applicant for delaying to apply for proceedings. I have considered the two rivaling submissions. It is clear from the annexures that the applicant applied for the proceedings in a letter dated 28th October 2003, just a day after the ruling was delivered. The certificate of delay issued by trial court acknowledges receiving the application for proceedings on 10. 11. 2003 but could not supply the same until time to file appeal had lapsed. The trial court regretted the delay as due to back log at the typing pool. I am satisfied that the delay to supply proceedings was not within control of the applicant. It is also a good reason that can entitle this court exercise its discretion to extend time for a litigant to lodge appeal out of time.
The second ground raised by the applicant is that he could not lodge the appeal in time because he did not have funds to do so. I am not convinced that this is a good and sufficient reason to entitle me exercise my discretion in favour of the applicant. I am fortified by the that fact the applicant did not take advantage of order XXXII of the Civil Procedure rules. There is no evidence to show that he made an application under the above provisions and that his request was refused.
The applicant has also annexed to his affidavit a copy of the intended memorandum of appeal to show that he has a good appeal with high chances of success. It would appear this is not one of the considerations which the law allows this court to take into account. I think the law recognises the fact that this court will still consider the strength of the appeal when perusing the same at the time of admission. Consequently it is in my humble view that this ground cannot assist the applicant.
In the end I will allow the motion on the first ground. The applicant should file and serve the appeal within 10 days from the date hereof. He should also pay thrown away costs of the motion assessed at ksh.2,000/= to Respondent.
DATED AND DELIVERED THIS 2nd DAY OF July 2004
J.K. SERGON
JUDGE