[2022] KEHC 11615 (KLR)
The court found that the delay in filing the appeal was minimal—at most two days—and not inordinate. The applicants provided a reasonable explanation for the delay, namely, the late availability of the typed judgment. The court was satisfied that the applicants had demonstrated sufficient cause for the extension of...
Source-derived case information.
- Citation
- [2022] KEHC 11615 (KLR)
- Parties
- Applicant: Mathew Kioko Kyania; Applicant: Martin Kyalo; Respondent: Nexus Logistics Limited; Respondent: Modern Coast Builders And Contractors Limited; Respondent: Julius Kyalo Nzau
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E76 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- TM Matheka
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Discretion of Court, Filing Deadlines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Kioko Kyania
Applicant
Martin Kyalo
Applicant
Nexus Logistics Limited
Respondent
Modern Coast Builders And Contractors Limited
Respondent
Julius Kyalo Nzau
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
- 3 Whether the memorandum of appeal filed out of time should be regularized.
Ratio Decidendi
The court found that the delay in filing the appeal was minimal—at most two days—and not inordinate. The applicants provided a reasonable explanation for the delay, namely, the late availability of the typed judgment. The court was satisfied that the applicants had demonstrated sufficient cause for the extension of time. The memorandum of appeal filed out of time was deemed properly filed upon payment of the requisite fees, and the applicants were directed to serve the respondents and file the record of appeal within the stipulated timelines. The opposition by the respondents was found to be without merit.
Court Disposition
application allowed
Orders
- The application for extension of time to file the appeal is allowed.
- The memorandum of appeal filed on 23rd July 2021 is deemed as duly filed upon payment of requisite filing fees, to be paid within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
36 paragraphs
Kyania & another (Suing as Legal Representatives and Administrators of The Estate of the Late Dorcas Ngina Kyalo) v Nexus Logistics Limited & 2 others (Civil Appeal E76 of 2021) [2022] KEHC 11615 (KLR) (19 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11615 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal E76 of 2021
TM Matheka, J
May 19, 2022
Between
Mathew Kioko Kyania
1st Applicant
Martin Kyalo
2nd Applicant
Suing as Legal Representatives and Administrators of The Estate of the Late Dorcas Ngina Kyalo
and
Nexus Logistics Limited
1st Respondent
Modern Coast Builders And Contractors Limited
2nd Respondent
Julius Kyalo Nzau
3rd Respondent
Ruling
1. By a motion dated 21st January 2022 brought under section 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules, the Applicant seeks the following orders: -a.Spent.b.Thatthis Honourable Court be pleased to grant the leave and or extent/enlarge the time within which to enable the applicant to lodge an appeal against the judgment/decree of the Court in Molo CMCC No. 290 of 2017. c.That pursuant to the prayer (b) above the annexed memorandum of appeal filed on the 23rd July 2021 be regularized and deemed as properly and duly filed and subsequently served on the Respondents Advocates upon payment of requisite court fees.d.Thatcosts of this Application be in the Cause.
2. The Application is supported by the grounds on the face of the application and in the Supporting Affidavit of the applicants. The applicants sued the respondent in Molo PMCC Number 290 of 2017. The judgement was delivered on 21st June 2021. They were not able to get the typed judgement in good time to enable them file the appeal in good time. I have not seen any response from the 1st respondent and the 3rd respondent is not opposed to the application.
3. Mr. Muchela for the 2nd respondent swore an Affidavit in opposition on the 18th February 2022 stating that the applicant had not fulfilled the requirements for the exercise of the court’s discretion in his favour.
4. The applicant and the 2nd respondent filed rival Submissions.
5. I have considered the Submissions, the Authorities cited.
6. Section 79G of theCivil Procedure Rulesprovides for time for filing appeals from subordinate courts;“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.”
7. I am guided by what the Court in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, (Civil Application No. Nairobi 255 of 1997) (unreported), that :-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
8. The delay herein is one (1) day, at most two (2) days. Judgment was delivered on the 21st June 2021. The thirty (30) days expired on the 21st July 2021. Where is the inordinate delay?
9. A perusal of the Memorandum of Appeal indicates an arguable appeal.
10. The opposition by the respondents is not merited.
11. The application is allowed.
12. The Memorandum of Appeal filed on 23rd July 2021 will be deemed as filed upon the payment of the requisite filing fees, in any case not later than fourteen (14) days from the date hereof, during which period in must also be served upon the respondents.
13. The appellant is to file and serve the Record of Appeal within thirty (30) days of the preceding order that is within 45 days hereof.
14. Costs to the respondents.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY 2022. MUMBUA T. MATHEKAJUDGECourt Assistant EdnaFor the appellantMorgan Omusundi Law Firm AdvocatesFor the 2nd respondent.M.W Muli & Co. Advocates,For the 2nd respondentM/S Murimi, Ndumia, Mbago & Muchela Advocates,For the 3rd respondentJ.M.Kimani & Co.Advocates,