[2014] KEHC 2408 (KLR)
The court found that although there was some delay in filing the appeal and no certificate of delay was produced, the delay was not inordinate and had been sufficiently explained by the applicant. The court emphasized its wide discretion under Order 50 rule 6 to enlarge time, provided the discretion is exercised...
Source-derived case information.
- Citation
- [2014] KEHC 2408 (KLR)
- Parties
- Applicant: Mirriam Nasserian Sakana; Respondent: Kithome Kitevu; Respondent: Justus Muia
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 54 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
- Outcome
- Application allowed with costs to the respondent. Applicant to file appeal within 30 days.
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Appeal Filing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mirriam Nasserian Sakana
Applicant
Kithome Kitevu
Respondent
Justus Muia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the extension of time to file an appeal.
- 2 Whether the delay in filing the appeal is inordinate or excusable.
- 3 Whether the appeal is arguable and has prospects of success.
Ratio Decidendi
The court found that although there was some delay in filing the appeal and no certificate of delay was produced, the delay was not inordinate and had been sufficiently explained by the applicant. The court emphasized its wide discretion under Order 50 rule 6 to enlarge time, provided the discretion is exercised judicially. The court also noted that the appeal was arguable based on the Memorandum of Appeal. Consequently, the application for extension of time was allowed, with the applicant ordered to file the appeal within 30 days.
Court Disposition
Application allowed with costs to the respondent. Applicant to file appeal within 30 days.
Orders
- The application for extension of time to file the appeal is allowed.
- The applicant shall file the appeal within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO. 54 OF 2013
MIRRIAM NASSERIAN SAKANA ……………….…… APPELLANT/APPLICANT
VERSUS
1. KITHOME KITEVU
JUSTUS MUIA ................................................................................... RESPONDENTS
R U L I N G
The application dated 30/1/2013 seeks orders that the court be pleased to extend the time within which the Plaintiff should file his appeal and that the Appeal filed herein be deemed as duly filed.
The affidavit in support sworn by the Applicant’s counsel blames the delay on the on availability of the lower court file and also on pressure of work on the counsel’s side. It is argued that the appeal has overwhelming chances of success.
In opposition to the application, the Respondent’s counsel filed a replying affidavit. It is averred that the application has no merits. That the intended appeal has no chances of success. That the Interested Party was enjoined in the suit as a Defendant by the consent of the parties and that the issues herein would best be addressed by having the suit before the lower court fully heard on priority basis.
Whereas no certificate of delay has been exhibited herein and the counsel has conceded to some delay on his part, nevertheless the delay is not inordinate. Under Order 50 rule 6 the court has wide and unfettered power to enlarge time. This discretion is however to be exercised judicially (See for example Poith Walla –vs- Kidogo Basi Housing Co-operative Society & 31 Others 2003 KLR 74). The delay has been explained. The delay is also not inordinate. From the Memorandum of Appeal, it is apparent that the appeal is arguable. The application meets the requirements set out under Order 50 rule 6. Consequently, I allow the application with costs to the Respondent. The Applicant to file his appeal within 30 days from date hereof.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 30thday of September 2014.
………………………………………
B. THURANIRA JADEN
JUDGE