[2023] KEHC 23495 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely that he had instructed his previous advocate to file the appeal but discovered after the lapse of time that no appeal had been filed. The respondent, despite being served, did not oppose the...
Source-derived case information.
- Citation
- [2023] KEHC 23495 (KLR)
- Parties
- Applicant: Samuel Ondieki; Respondent: Erick Joseph
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 107 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application granted
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Small Claims Appeals, Extension of Time, Procedural Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ondieki
Applicant
Erick Joseph
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 from the judgment of the Small Claims Court.
- 2 Whether the delay in filing the appeal was sufficiently explained.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely that he had instructed his previous advocate to file the appeal but discovered after the lapse of time that no appeal had been filed. The respondent, despite being served, did not oppose the application. The court exercised its discretion to grant leave to appeal out of time, limited to points of law, and directed that the appeal be filed and served within seven days. No order as to costs was made, and the file was closed.
Court Disposition
application granted
Orders
- Leave is granted to the applicant to appeal to this court on points of law only from Small Claims Court Case number E014 of 2023.
- The appeal to be filed and served within seven (7) days from the date hereof.
Full Case Text
Judgment text and source record
23 paragraphs
Ondieki v Joseph (Miscellaneous Application 107 of 2023) [2023] KEHC 23495 (KLR) (12 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23495 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Application 107 of 2023
RE Aburili, J
October 12, 2023
Between
Samuel Ondieki
Applicant
and
Erick Joseph
Respondent
(Application for to file an appeal out of time from the Judgment of the Small Claims Court Case No. E014 of 2023 Erick Joseph Ochola v Samuel Ondiek & Grace Rabut delivered on April 6, 2023 by Hon. G. C. Serem SRM, Adjudicator.)
Ruling
1. The application dated June 26, 2023 seeks leave of court to file an appeal out of time from the Judgment of the Small Claims Court Case No. E014 of 2023 Erick Joseph Ochola vs Samuel Ondiek & Grace Rabut delivered on April 6, 2023 by Hon. G. C. Serem SRM, Adjudicator.
2. The application which is argued orally is supported by grounds and an affidavit sworn by Samuel Ondiek explaining reasons for the delay that the Applicant instructed the advocate on record to appeal but realized that no appeal had been filed after lapse of time hence he instructed the current advocates to represent him.
3. The application is unopposed.
4. I have considered the application, grounds and supporting affidavit. The Respondent was served but no response in opposition has been filed. I grant the Applicant leave to appeal to this court on points of law only from the Small Claims Court Case number E014 of 2023.
5. The appeal to be filed and served within seven (7) days from the date of hereof.
6. I make no orders as to costs.
7. This file is closed. I so order
DATED, SIGNED AND DELIVERED AT KISUMU THIS 12TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE