[2007] KEHC 135 (KLR)
The court held that the time for filing the appeal had not expired when the application for extension was made, as the period taken to prepare and deliver the decree is excluded under section 79G of the Civil Procedure Act. The application for extension of time was therefore unnecessary, and the applicant had not...
Source-derived case information.
- Citation
- [2007] KEHC 135 (KLR)
- Parties
- Applicant: Kathumbi Rurigi; Respondent: Douglas Maina Kangangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 66 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Order Extending Time to File Appeal
- Outcome
- application dismissed with costs to respondent
- Legal Topics
- Extension of Time, Service of Process, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kathumbi Rurigi
Applicant
Douglas Maina Kangangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Order Extending Time to File Appeal
Legal Issues
- 1 Whether failure to serve the application to extend time prejudiced the applicant.
- 2 Whether the order extending time to file appeal should be set aside for lack of service.
- 3 Whether the application for extension of time was necessary given the statutory timelines.
Ratio Decidendi
The court held that the time for filing the appeal had not expired when the application for extension was made, as the period taken to prepare and deliver the decree is excluded under section 79G of the Civil Procedure Act. The application for extension of time was therefore unnecessary, and the applicant had not suffered any prejudice from lack of service. Furthermore, service of the application to extend time was not required at that stage, as the respondent is not entitled to be heard until the appeal is admitted under section 79B. Consequently, there was no basis to set aside the order extending time, and the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to respondent
Orders
- The application to set aside the order extending time to file appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT EMBU
MISC CIV APPLI 66 OF 2006
KATHUMBI RURIGI…………………………………………………APPLICANT
VERSUS
DOUGLAS MAINA KANGANGI……………………………….RESPONDENT
RULING
Application dated 28/2/2007 seeks to set aside court order made on 27/6/2006 and all consequential proceedings on the ground that the applicant was never served with the application dated 22/6/2006 and the application was heard exparte to the prejudice of the applicant. The order granted on 27/6/2006 extended time to the applicant within which to file proposed appeal arising out of Judgment in Wanguru RMCC No. 38 of 2003. The applicant ground is that he was not served and therefore was denied his right to be heard. The replying affidavit sets out the facts as are recorded. Tme for filing appeals from subordinate courts is specified under section 79 G of Civil Procedure Act. However in case the appeal is not filed within that time proviso thereof provides that an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time. In this case the application was under certificate of urgency and the proposed appellant did satisfy the court that he had a good and sufficient cause for not filing the appeal within time. The Judgment was read on 4/5/2006 and application for proceedings was made on 5/5/2006 while the proceedings were supplied 8/6/2006. And the application was filed on 22/6/2006. Section 79 G allows for the time taken to prepare and deliver decree to the appellant. Therefore time had not expired. The time taken by court was only 34 days and time started running on 9/6/2006. By the time the Respondents approached the court believing they were late for 7 days the time allowed had not expired. The application was not necessary and therefore good and sufficient cause was shown.
It is my view that service of application to extend time in circumstances was not required. In fact the respondent is not required to be heard until the appeal is admitted to hearing under section 79 B.
I find no reason shown to warrant a review of the orders as prayed in this application lack of service does not in any way prejudice the applicant. The application is dismissed with costs to Respondent.
Orders accordingly.
Dated this 2nd July, 2007.
J. N. KHAMINWA
JUDGE
2/7/2007
Khaminwa – Judge
Njue -Clerk
Mr. Kathumbi Ririgi present in person
Ruling Read in his presence in open court.
J. N. KHAMINWA
JUDGE