[2012] KEHC 727 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely the need to change advocates and obtain certified copies of proceedings. The court noted that the delay was not inordinate and that the respondent would not suffer prejudice since the decretal sum had...
Source-derived case information.
- Citation
- [2012] KEHC 727 (KLR)
- Parties
- Applicant: Kiru Tea Factory Co. Ltd.; Respondent: Joseph Gioche Kuria
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- J Wakiaga
- Legal Topics
- Extension of Time, Appeals Process, Delay and Laches
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiru Tea Factory Co. Ltd.
Applicant
Joseph Gioche Kuria
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the appeal.
- 2 Whether the court should exercise its discretion to enlarge time for filing the appeal.
- 3 Whether the respondent will suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely the need to change advocates and obtain certified copies of proceedings. The court noted that the delay was not inordinate and that the respondent would not suffer prejudice since the decretal sum had already been paid. Exercising its discretion under Order 50 Rule 6 of the Civil Procedure Rules, the court held that the interests of justice required granting the extension of time to file the appeal. Accordingly, the applicant was allowed to file the memorandum of appeal within seven days from the date of the ruling, with costs awarded to the respondent.
Court Disposition
application allowed
Orders
- The applicant is allowed to file a memorandum of appeal against the judgment and decree of CMCC No. 35 of 2011 Nyeri within 7 days from the date of the ruling.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Nyeri
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KIRU TEA FACTORY CO. LTD.…...….………...........…APPLICANT
Versus
JOSEPH GIOCHE KURIA……….………......……....…RESPONDENT
RULING
The application is dated 9th January 2012 in which the applicant seeks the enlargement of time within which to file an appeal against the ruling and decree of the Chief Magistrate's court in civil Case No. 35 of2011 Nyeri.
It is based upon the following grounds:
1. Failure to lodge the appeal within time was caused by the need to first apply for leave to change the applicant's advocates.
2. The delay was not inordinate since the applicant's new advocate had to get instructions through a chain of command of the applicant's officers who do not stay in one place.
3. The respondent will not suffer prejudice as the decretal sum has already been paid to the same.
The application is supported by the affidavit of John Kiama Mwega wherein the same has stated that ruling was delivered on 7th June 2011 striking the applicant's defence and entering judgment in favour of he respondent with cost. The applicant decided to use a new advocate having been dissatisfied with the said ruling and only managed to obtain leave on 15th December 2011.
That the first advocate had applied for certified copies of proceedings and the certificate of delay issued on 5th December 2011 and this present application filed on 11th January 2012 so the delay is not inordinate.
The application is opposed by the respondent who has filed a replying affidavit in which the same has stated that the applicant has not indicated when it made a decision to appeal against the ruling, reasons why no memorandum of appeal was not lodged as required on time and neither has the same explained the laches and inordinate delay.
I have looked at the affidavit both in support and in opposition of the application and the oral submission by the advocates herein.
Under order 50 rule 6 the powers of the court to enlarge time are wide and unfettered with the only issue being the justice of the case and that such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
In the matter before me the applicant has explained the reason for the delay which was the need to have a new advocate on record and to obtain certified copies of proceedings and having paid the decretal sum to the respondent I see no prejudice to the same.
I am of the considered opinion that the justice of this case demands that I allow the extension of time to the applicant to file the appeal.
I therefore allow the applicant to file memorandum of appeal against the judgment and decree of the CMCC No. 35 of 2011 Nyeri within the next 7 days from the date herein with costs to the respondent.
Dated at Nyeri this 6th day of December 2012.
J. WAKIAGA
JUDGE
Mr. Gichuki for the applicant.
Mr. Nganga for Mr. Nderi for Respondent.
Ruling read in open court in the presence of the above named.
J. WAKIAGA
JUDGE