[2003] KEHC 822 (KLR)
The court found that the delay in filing the appeal was attributable to the applicant's advocate and not to the applicant's own fault. The applicant demonstrated that there was an arguable appeal and provided a reasonable explanation for the delay. The court exercised its discretion in favour of the applicant,...
Source-derived case information.
- Citation
- [2003] KEHC 822 (KLR)
- Parties
- Applicant: MT. KENYA PETROLEUM DISTRIBUTORS; Respondent: KRISHON BEHAL & SONS
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 2 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- GG Okwengu
- Legal Topics
- Extension of Time, Appeals, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MT. KENYA PETROLEUM DISTRIBUTORS
Applicant
KRISHON BEHAL & SONS
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal against the ruling of the Senior Resident Magistrate.
- 2 Whether the delay in filing the appeal was excusable.
Ratio Decidendi
The court found that the delay in filing the appeal was attributable to the applicant's advocate and not to the applicant's own fault. The applicant demonstrated that there was an arguable appeal and provided a reasonable explanation for the delay. The court exercised its discretion in favour of the applicant, holding that justice would be served by allowing the extension of time. The absence of opposition at the hearing and the lack of prejudice to the respondent further supported the decision to grant the application.
Court Disposition
application allowed
Orders
- Time is enlarged for the applicant to file the appeal within 21 days from the date of the ruling.
- No orders as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NYERI
Misc 2 of 02[1]
MT. KENYA PETROLEUM DISTRIBUTORS………..APPLICANT
VERSUS
KRISHON BEHAL & SONS……………………….RESPONDENTS
R U L I N G
By his amended notice of motion filed on 27th May 2003, the Applicant seeks to have time enlarged to enable him appeal against the ruling of the Senior Resident Magistrate Nanyuki in SRMCC No. 33 of 2001 delivered on 21st September 2001. The applicant has explained in the supporting affidavit that the delay was due to efforts which were being made to comply with the Magistrate’s order. Although grounds of opposition and replying affidavit was filed objecting to the application there was no attendance by the Advocates for the Respondent at the hearing of the application.
It is evident that there has been delay on the part of the applicant which delay was due to the actions of the Applicant’s advocate. Given the ruling of the Magistrate, and the law applicable. I am satisfied that the applicant has an arguable appeal and that I should exercise my discretion in its favour. I do therefore allow the application and do enlarge time for the applicant to file his appeal within 21 days from the date hereof. I give no orders as to costs.
Dated, Signed and Delivered this 23 rd day of December 2003.
H. M. OKWENGU
JUDGE