[2012] KEHC 158 (KLR)
The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely that the ruling was not ready for collection until 15.11.2011 despite a timely request for certified copies. The delay of approximately two and a half months was not considered inordinate, and the...
Source-derived case information.
- Citation
- [2012] KEHC 158 (KLR)
- Parties
- Applicant: Mirriam Amambia (Suing for and on behalf of the Estate of the Late Luka Amambia Chibole); Respondent: Enock Atswenje Titina
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 48 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed with costs to the respondent
- Legal Topics
- Extension of Time, Appeal Out of Time, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mirriam Amambia (Suing for and on behalf of the Estate of the Late Luka Amambia Chibole)
Applicant
Enock Atswenje Titina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the appeal out of time.
- 2 Whether the delay in filing the appeal is inordinate and prejudicial to the respondent.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely that the ruling was not ready for collection until 15.11.2011 despite a timely request for certified copies. The delay of approximately two and a half months was not considered inordinate, and the respondent did not challenge the explanation for the delay in the replying affidavit. The court exercised its discretion to allow the application for extension of time, finding no prejudice to the respondent and awarding costs to the respondent.
Court Disposition
application allowed with costs to the respondent
Orders
- Leave is granted to the applicant to file the appeal out of time.
- The respondent is awarded costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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MIRRIAM AMAMBIA (Suing for andon behalf of the Estate of
THE LATE LUKA AMAMBIA CHIBOLE)...........................APPLICANT
VERSUS
ENOCK ATSWENJE TITINA...............................................RESPONDENT
RULING
The application by way of Notice of Motion dated 20. 9.2011 seeks orders for filing an appeal out of time.
The application is supported by the affidavit of the applicant, MIRIAM AMAMBIA sworn on 2. 9.2011. The reason given for the failure to file the appeal within time is that the ruling sought to be appealed from was not ready for collection until 15. 11. 2011.
The application is opposed as per the replying affidavit sworn on 8. 12. 11 by the respondent, ENOCK ATSWENJE TITIHA.
According to the respondent, the intended appeal has no chances of success as the Kakamega CMCC No. 151 of 2011 which is the subject of the intended appeal was a replica of Kakamega CMCC No. 610/10 which was between the same parties.
The firm of K. N. Wesutsa advocates appeared for the applicant while the firm of Elungata & Co. advocates appeared for the respondent.
The counsel for the applicant filed written submissions while the counsel for the respondent did not offer any submissions.
I have considered the application, the reply to the same and the submissions made.
The orders striking out Kakamega CMCC No. 156 of 2011 were made on 5. 8.11. The application herein was filed on 26. 11. 11. There was a delay of about 2 ½ months. The applicant has exhibited a letter filed in court on 11. 8.11 which requested for certified copies of the proceedings and ruling delivered on 5. 8.11.
The respondent has not commented in his replying affidavit regarding the issue of delay. This court accepts the explanation given for the delay. The delay is not inordinate.
Consequently, the application is allowed with costs to the respondent.
Delivered, dated and signed at Kakamega this 18th day of December, 2012
B. THURANIRA JADEN
J U D G E