[2004] KEHC 544 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay, namely the late supply of proceedings and judgment as evidenced by the certificate of delay. The court noted that while proceedings are not required at the initial stage of filing an appeal, they are necessary for the hearing....
Source-derived case information.
- Citation
- [2004] KEHC 544 (KLR)
- Parties
- Applicant: Orester Kamau Irungu; Respondent: Mary Wangari Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1484 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- 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
Orester Kamau Irungu
Applicant
Mary Wangari Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate or justified.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay, namely the late supply of proceedings and judgment as evidenced by the certificate of delay. The court noted that while proceedings are not required at the initial stage of filing an appeal, they are necessary for the hearing. The applicant's conduct did not demonstrate any deliberate or unexplained delay. The court also considered that the issue intended to be raised on appeal was not frivolous. Consequently, the court exercised its discretion to allow the application for extension of time to appeal out of time.
Court Disposition
application allowed
Orders
- The application dated 27th November 2003 is allowed.
- Costs shall abide the appeal.
Full Case Text
Judgment text and source record
14 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CIVIL APPLICATION NO. 1484 OF 2003
ORESTER KAMAU IRUNGU……………………………..…..APPLICANT VERSUS MARY WANGARI MWANGI ……………………………… RESPONDENT
R U L I N G
1. The Applicant in this matter seeks extension of time to file an appeal out of time from the judgment of G. K. Mwaura, SRM Murang’a.
2. The delay is explained by the fact that the proceedings and judgment were only supplied on 13th November 2003. The certificate in delay confirms that fact.
3. I have heard no strong opposition to the Application save that the delay is said to be inordinate as proceedings and judgment are not prerequisites for filing an appeal and in any event the decretal sum has been paid.
4. I shall grant the Application as I see that the issue being raised on appeal is not frivolous and secondly whereas it is true that proceedings are not necessary at the first instance, they are necessary at the hearing of the matter and in any event, the conduct of the Applicant throughout the period subsequent to the judgment is one of a keen litigant. I have seen no deliberate or unexplained laches on its part.
5. Accordingly, the Application dated 27th November 2003 be and is hereby allowed.
Costs shall abide the appeal.
Dated and delivered at Nairobi this 12th day of February 2004
I. LENAOLA Ag. JUDGE
12. 2.2004 Before Lenaola Ag. J. Amos CC Ruling read in the absence of the parties.
I. LENAOLA Ag. JUDGE