[2023] KEHC 21284 (KLR)
The court found that while the applicant's claim of ill health was not entirely convincing, the delay in obtaining certified copies of the proceedings and judgment was substantiated by the certification date. The court held that the requirement to have certified copies before filing an appeal was reasonable, and the...
Source-derived case information.
- Citation
- [2023] KEHC 21284 (KLR)
- Parties
- Applicant: Benard Kubai (Suing as the legal representative of the Estate of Carlin Kayuyu - Deceased); Respondent: Irene Njeri Nganga
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E009 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A. Ong’injo
- Legal Topics
- Extension of Time, Leave to Appeal, Delay in Filing, Judgment Delivery, Certified Copies, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Kubai (Suing as the legal representative of the Estate of Carlin Kayuyu - Deceased)
Applicant
Irene Njeri Nganga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the judgment of the magistrate's court.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
Ratio Decidendi
The court found that while the applicant's claim of ill health was not entirely convincing, the delay in obtaining certified copies of the proceedings and judgment was substantiated by the certification date. The court held that the requirement to have certified copies before filing an appeal was reasonable, and the three-month delay was not inordinate under the circumstances. Consequently, the court exercised its discretion to allow the application and granted the applicant leave to appeal within 14 days.
Court Disposition
application allowed
Orders
- The applicant is granted leave to appeal within the next 14 days.
- Parties to bear their own costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
Kubai (Suing as the legal representative of the Estate of Carlin Kayuyu - Deceased) v Nganga (Miscellaneous Civil Application E009 of 2022) [2023] KEHC 21284 (KLR) (9 February 2023) (Ruling)
Neutral citation: [2023] KEHC 21284 (KLR)
Republic of Kenya
In the High Court at Voi
Miscellaneous Civil Application E009 of 2022
A. Ong’injo, J
February 9, 2023
Between
Benard Kubai (Suing as the legal representative of the Estate of Carlin Kayuyu - Deceased)
Applicant
and
Irene Njeri Nganga
Respondent
Ruling
1. By an application dated June 3, 2022, the applicant sought for leave to lodge an appeal against the judgment in Voi Chief Magistrate’s Court Civil Case No. E105 of 2021 out of time. The said judgment was delivered on March 24, 2022 and the reason given for delay in filing an appeal was on account of the Applicant’s ill health and on account of delay in supply of the proceedings and judgment in the magistrate’s court.
2. The respondents in their replying affidavit sworn by Lilian Munyiri, the Legal Manager of Geminia Insurance Co. Ltd have opposed the application for leave to file appeal out of time.
3. The application was canvassed by way of written submissions. The applicant’s submissions are dated October 5, 2022 and the respondent’s submissions are dated October 5, 2022.
4. This court has considered the application and respective submissions by the parties and find that the ground that the applicant was sick and that is why he delayed in giving instructions is not very convincing. However, it is clear from the certification of the proceedings that the same was done on May 13, 2022 long after the period within which the applicant ought to have appealed had lapsed.
5. This court finds that the applicants required to have certified copies of the judgement and the proceedings before they could appeal against the decision of the court and a delay of 3 months cannot be said to be inordinate delay. The application is therefore allowed. The applicant is granted leave to appeal within the next 14 days.
6. Parties to bear their own costs of the application.
DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS9TH DAY OF FEBRUARY 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:Otolo- Court AssistantMr. Ngunjiri Advocate for the Applicant - PresentMr. Chamwada Advocate for the Respondent - PresentHON. LADY JUSTICE A. ONG’INJOJUDGE