[2024] KEHC 4913 (KLR)
The court found that although the applicant delayed by about three months in seeking leave to appeal, he attributed the delay to difficulties in obtaining the proceedings, judgment, and decree from the lower court. While there was no certificate of delay or evidence of formal requests for proceedings, the court...
Source-derived case information.
- Citation
- [2024] KEHC 4913 (KLR)
- Parties
- Applicant: Denis Gisemba Okong’o; Respondent: Zipporah Kerubo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 253 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time.
- Judges
- TA Odera
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Maintenance Orders, Parental Responsibility, Access to Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Denis Gisemba Okong’o
Applicant
Zipporah Kerubo
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 file an appeal out of time against the decision of the lower court.
- 2 Whether the delay in filing the appeal was sufficiently explained.
- 3 Whether the intended appeal raises arguable issues.
Ratio Decidendi
The court found that although the applicant delayed by about three months in seeking leave to appeal, he attributed the delay to difficulties in obtaining the proceedings, judgment, and decree from the lower court. While there was no certificate of delay or evidence of formal requests for proceedings, the court noted that the intended appeal raised arguable issues, including the quantum of maintenance, consideration of the applicant's means, and access to children. Given the nature of the matter involving children and the constitutional imperative to administer justice without undue technicalities, the court exercised its discretion to allow the application for leave to appeal out of...
Court Disposition
Application allowed. Leave granted to file appeal out of time.
Orders
- Applicant to file and serve the intended appeal within 10 days from the date of the ruling, failing which the orders will lapse.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
23 paragraphs
Okong’o v Kerubo (Miscellaneous Civil Case 253 of 2022) [2024] KEHC 4913 (KLR) (6 May 2024) (Ruling)
Neutral citation: [2024] KEHC 4913 (KLR)
Republic of Kenya
In the High Court at Kisii
Miscellaneous Civil Case 253 of 2022
TA Odera, J
May 6, 2024
Between
Denis Gisemba Okong’o
Plaintiff
and
Zipporah Kerubo
Defendant
Ruling
1. The applicant filed application dated 7. 11. 22 seeking Leave to file appeal against the decision of C. Ombija SRM in Keroka MCCHCC/E)) /2021 out of time. The decision sought to be appealed from was made on 17th August 2023. He cites challenges in obtaining proceedings, judgment decree and typed proceedings as the reason for delay in filing the intended appeal. The application is based on the annexed affidavit of the applicant in which he annexed a copy of the judgment and the draft memorandum of appeal. He deponed that the delay was caused by difficulty in obtaining the proceedings judgment and decree from court and that it is in the best interest of the minors that the application be allowed.
2. The respondent filed a replying affidavit dated 17. 5.23 and said the applicant has not shown that he applied for the proceedings, decree and judgment of the court within the stipulated time. She said the application was made in bad faith.
3. I have carefully considered the application and the response. Parties did not file submissions despite directions being given to that effect. I will nevertheless proceed to determine the application.
5. The principles guiding applications for leave to file appeal out of time were set out by the court of appeal in the case of Thuita Mwangi V Kenya Airways Ltd [2003] eKLR. As follows -i)The period of delay;ii)The reason for the delay;iii)The arguability of the appeal;iv)The degree of prejudice which could be suffered by the if Respondent the extension is granted;v)The importance of compliance with time limits to the particular litigation orissue; andvi)The effect if any on the administration of justice or public interest if any is involved.
6. In this instant case, the period of delay was about 3 months and the reason was given for the delay is that the applicant had difficulties getting the proceedings, judgment and the decree. There is however to certificate of delay issued by the court administrator nor letters to court requesting for the proceedings.
7. On whether the appeal is arguable, only the draft memorandum of appeal has been annexed the same challenges the sum of Kshs. 20,000/= granted for maintenance, that the court did not look at the means of applicant, limitation of access to children principles of parental responsibility and not considering residence of applicant and respondent to granting access orders. This are arguable issues.
8. This is a children matter and expeditious disposal of children matters cannot be gain said. The applicant has a right to be heard and especially in this case due to its nature. Article 159 of the constitution enjoins courts to administer justice without undue technicalities of procedure. I will apply the said Article and allow the application and order that applicant do file and serve the intended appeal within 10 days from today otherwise the orders will lapse.
9. This being a family matter each party shall bear his own costs.
T.A ODERAJUDGEDELIVERED VIRTUALLY VIA TEAMS PLATFORM AT KISII IN THE PRESENCE OF: -Oigo - Court assistantParties - Absent.