[2001] KEHC 111 (KLR)
The court found that the applicant failed to provide a sufficient explanation for the delay in filing the appeal. The only reason advanced was the time taken to obtain certified copies of the proceedings, judgment, and decree, but the applicant did not produce a certificate of delay from the subordinate court to...
Source-derived case information.
- Citation
- [2001] KEHC 111 (KLR)
- Parties
- Applicant: Penina Mwikali Makula; Respondent: Jane Muthoni Mbaka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 581 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Appeals From Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Penina Mwikali Makula
Applicant
Jane Muthoni Mbaka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown good and sufficient cause for failing to file the appeal within the prescribed time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time.
Ratio Decidendi
The court found that the applicant failed to provide a sufficient explanation for the delay in filing the appeal. The only reason advanced was the time taken to obtain certified copies of the proceedings, judgment, and decree, but the applicant did not produce a certificate of delay from the subordinate court to substantiate that the delay was attributable to the court's preparation and delivery of the documents. Without such evidence, and in the absence of any other explanation for the delay, the applicant did not meet the threshold of 'good and sufficient cause' required under section 79G of the Civil Procedure Act. Consequently, the court declined to exercise its discretion to grant...
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C. MISC. CIVIL APP. NO. 581 OF 2000
PENINA MWIKALI MAKULA……………………………APPLICANT - V E R S U S – JANE MUTHONI MBAKA……………………………..RESPONDENT
R U L I N G
This is an application for leave to appeal against the judgment and decree of a subordinate court out of time.
The Applicant who was the Defendant in the main suit only stated that being dissatisfied with the judgment in the subordinate court she instructed her lawyers to request for certified copies of the proceedings, judgment and decree for purposes of the appeal and that when she collected the same, she had already run out of time. This is not sufficient matter to satisfy this court to allow this application. The matter of leave to file an appeal out of time is dealt with in section 79G of the Civil Procedure Act. That section provides as follow:-
“79G. Every appeal from a subordinate court to the High court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time i f the Appellant satisfies the court that he had good and sufficient Cause for not filing the appeal in time.”
For the matter deponed to by the Applicant, nothing would have been easier than for her to file a certificate of delay from the subordinate court to show that the delay was occasioned by the subordinate court preparing and delivering to her “a copy of the decree or order.” Otherwise, the Applicant does not offer any other reason why she did not file her appeal out of time and without such explanation she cannot benefit from this court’s discretion in this matter.
DATED and DELIVERED at NAIROBI this 2nd day of April, 2001. ALNASHIR VISRAM, J U D G E.