[2016] KEHC 1546 (KLR)
The court found that the applicant had complied with its earlier directions by filing a supporting affidavit explaining the delay in filing the appeal. The respondent did not file any replying affidavit to controvert the applicant's reasons. The only ground of opposition—that the application was incompetent for want...
Source-derived case information.
- Citation
- [2016] KEHC 1546 (KLR)
- Parties
- Applicant: Kamau Muhia; Respondent: Agricultural Finance Corporation
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Appeal 100 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Supporting Affidavit Requirement
- 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
Kamau Muhia
Applicant
Agricultural Finance Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for leave to appeal out of time was incompetent for want of a supporting affidavit.
- 2 Whether the applicant had shown sufficient cause for the delay in filing the appeal.
Ratio Decidendi
The court found that the applicant had complied with its earlier directions by filing a supporting affidavit explaining the delay in filing the appeal. The respondent did not file any replying affidavit to controvert the applicant's reasons. The only ground of opposition—that the application was incompetent for want of a supporting affidavit—was factually incorrect. In the absence of any challenge to the applicant's explanation for delay, and in the interests of justice, the court exercised its discretion to allow the application and grant leave to appeal out of time, subject to the applicant lodging the memorandum of appeal within 14 days.
Court Disposition
application allowed
Orders
- Leave granted to the applicant to appeal out of time.
- Applicant to lodge memorandum of appeal within 14 days from the date of delivery of the ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
MISC CIVIL APPLICATION NO 100 OF 2013
KAMAU MUHIA........................................................................APPLICANT
VERSUS
AGRICULTURAL FINANCE CORPORATION....................RESPONDENT
R U L I N G
1. The Applicant herein filed his notice of motion dated 4/11/2013 (for leave to appeal out of time) without a supporting affidavit. Clearly the application was going to stand or fall upon certain facts as would explain to the satisfaction of the court that he had good and sufficient cause for not filing his appeal in time. See the proviso to section 79G of the Civil Procedure Act, Cap 21. It was necessary therefore that an affidavit setting out such facts be annexed to the application. Without such affidavit, the application would be incompetent and liable to be struck out.
2. Initially the Applicant’s application came up for hearing on 10/03/2015. In a preliminary ruling dated and delivered on 5/06/2015 the court directed the Applicant to file and serve a supporting affidavit within 14 days of that date in the interests of justice as he was unrepresented, and the Respondent to be at liberty to file and serve a replying affidavit. Indeed the Applicant filed such supporting affidavit on 12/06/2015 in which he endeavored to explain the delay in filing his appeal.
3. The application then came up for further hearing on 31/08/2016. The only ground argued by the learned counsel for the Respondent in opposing the application was that the same was incompetent for want of a supporting affidavit. Learned counsel’s submission was obviously founded on an erroneous fact; as we have already seen, following the directions of the court, the Applicant indeed filed a supporting affidavit. He also stated that he had served the same upon the Respondent. Learned counsel for the Respondent did not protest that there was no such service.
4. As it is, the reasons given by the Applicant in his supporting affidavit explaining the delay in filing his appeal were not controverted by the Respondent as he did not file any replying affidavit. In the circumstances I will allow the Applicant’s application and grant him leave to appeal out of time. He shall lodge his memorandum of appeal within 14 days from the date of delivery of this ruling. Costs of this application shall be in the appeal. In the event that no appeal if filed, the Respondent shall have costs of the application. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 24TH DAY OF NOVEMBER 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 25TH DAY OF NOVEMBER 2016