[2018] KEHC 6556 (KLR)
The court found that the applicants had made diligent efforts to obtain notice of the judgment and to secure the proceedings, but were unable to do so due to circumstances beyond their control. There was no evidence to refute the applicants' account, and the respondents did not oppose the application. The court held...
Source-derived case information.
- Citation
- [2018] KEHC 6556 (KLR)
- Parties
- Applicant: Kasyoka Ndivo & Morris Nguli Muli (Suing as the Legal Representatives of the Estate of Willy Mutua Muli, Deceased); Respondent: Buzeki Enterprises Ltd; Respondent: African E. Auto Mobile Company
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 79 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- LN Mutende
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Leave to Appeal, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasyoka Ndivo & Morris Nguli Muli (Suing as the Legal Representatives of the Estate of Willy Mutua Muli, Deceased)
Applicant
Buzeki Enterprises Ltd
Respondent
African E. Auto Mobile Company
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the applicants are to blame for the delay in filing the appeal.
Ratio Decidendi
The court found that the applicants had made diligent efforts to obtain notice of the judgment and to secure the proceedings, but were unable to do so due to circumstances beyond their control. There was no evidence to refute the applicants' account, and the respondents did not oppose the application. The court held that the applicants were not to blame for the delay and had demonstrated sufficient cause as required by Section 79G of the Civil Procedure Act. Accordingly, the court exercised its discretion to grant leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- Applicants granted leave to file the Memorandum of Appeal within 15 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CIVIL MISC. APPLICATION NO. 79 OF 2017
KASYOKA NDIVO & MORRIS NGULI MULI
(Suing as the Legal Representatives of the Estate of
WILLY MUTUA MULI(Deceased)............................................. APPLICANT
VERSUS
BUZEKI ENTERPRISES LTD ....................................... 1ST RESPONDENT
AFRICAN E. AUTO MOBILE COMPANY .................. 2ND RESPONDENT
R U L I N G
1. Kasyoka Ndivoand Morris Nguli Muli(Suing as the Legal Representatives of the Estate of Willy Mutua Muli(Deceased) approached this Court by way of Notice of Motion dated the 7thday of November, 2017seeking leave to file an Appeal out of time and that the Memorandum of Appeal annexed to the Application be deemed to have been duly filed.
2. The application is premised on grounds that the duration within which the Appeal was to be filed lapsed and the Applicant has an arguable Appeal.
3. In an affidavit in support of the application Kasyoka Ndivodeponed that the Judgment in respect of the Kitui CMCC No. 148 of 2014 was scheduled to be delivered on the 23rdday of May, 2017,but on the stated date the trial Magistrate did not sit therefore the Judgment was to be delivered on notice. Efforts made to get the notice were futile. Thereafter they came to learn that the Judgment was delivered without their notice. When they applied for proceedings they did not get them on time.
4. The application is unopposed. The Respondent’s Advocates were duly served but they neglected and/or refused to respond.
5. Time within which an Appeal ought to be filed is provided for in Section 79Gof the Civil Procedure Actthat stipulates thus:
“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, 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:
Provided that 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.”
6. In order for an Appeal to be admitted out of time there must be a sufficient cause that inhibited a party from filing the Appeal within the timeline set.
7. Annexture ‘KNI’is a letter authored by Counsel for the Applicant enquiring about the Judgment. Without any response refuting the allegations set out by the Applicant, I find the Applicant having demonstrated that they were not to blame for not filing the Appeal within the timeline set by statute.
8. In the premises, I grant the Applicants leave to file the Memorandum of Appeal within 15 days.
9. It is so ordered.
Dated, Signed and Delivered at Kitui this 17th day of April, 2018.
L. N. MUTENDE
JUDGE