[2007] KEHC 2084 (KLR)
The court found that the applicants had provided a satisfactory explanation for the delay in filing the appeal, as they received instructions after the expiry of the statutory period and promptly took steps to obtain the necessary documents. The absence of opposition from the respondents and the lack of inordinate...
Source-derived case information.
- Citation
- [2007] KEHC 2084 (KLR)
- Parties
- Applicant: Peter Andayi; Applicant: Isaiah Anganga; Respondent: Joseph Kibunja; Respondent: Simba Colt Motors
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 40 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- JL Osiemo
- Legal Topics
- Extension of Time, Leave to Appeal, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Andayi
Applicant
Isaiah Anganga
Applicant
Joseph Kibunja
Respondent
Simba Colt Motors
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to file an appeal out of time against the judgment and decree of the Principal Magistrate.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
Ratio Decidendi
The court found that the applicants had provided a satisfactory explanation for the delay in filing the appeal, as they received instructions after the expiry of the statutory period and promptly took steps to obtain the necessary documents. The absence of opposition from the respondents and the lack of inordinate delay persuaded the court to exercise its discretion in favour of the applicants. Consequently, leave to file the appeal out of time was granted.
Court Disposition
application allowed
Orders
- Applicants granted leave to file appeal out of time.
- Applicants to lodge their appeals within 14 days of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civil Appli 40 of 2007
PETER ANDAYI & ISAIAH ANGANGA………..…….………..PLAINTIFFS
VERSUS
JOSEPH KIBUNJA & SIMBA COLT MOTORS…………..DEFENDANTS
RULING
By way of this Notice of Motion dated 25th January 2007 and expressed to be brought under Section 3A and 79 G of the Civil procedure Act and Order L Rule 1 of the Civil Procedure Rules the Applicants seek leave to file appeal out of time against the judgment and decree of the learned principal Magistrate delivered on 25th may 2006 in CMCC NO. 10527 OF 2003.
The application is supported by an affidavit sworn by Livingstone Maina Ombete, counsel for the applicants on 25th January 2007 in which he avers that the judgment was delivered on 25th May 2006 and he received instructions to appeal against the judgment and decree of the learned Principal Magistrate on 10th July 2006; that he promptly applied for a certified copy of the proceedings and judgment on 10th July 2006 and by then the 30 days in which an appeal can be lodged had expired; that he had not personally been in court when the judgment was delivered; that he received a copy of the proceedings and judgment on 22nd January 2007; that there is no inordinate delay and Applicants have an arguable appeal.
The Respondent was served but he did not file any papers in opposition to the application. The application is unopposed.
I will exercise my discretion in favour of the applicants and allow the motion as prayed.
The Applicants shall lodge their appeals within 14 days hereof.
Dated and delivered at Nairobi this 30th day of May 2007.
J.L.A. OSIEMO
JUDGE