[2007] KEHC 564 (KLR)
The court found that the applicants had provided a reasonable explanation for the delay in filing the appeal, namely that their counsel was not present when judgment was delivered and only received instructions and the necessary documents after the appeal period had expired. The delay was not inordinate, and the...
Source-derived case information.
- Citation
- [2007] KEHC 564 (KLR)
- Parties
- Plaintiff: Peter Andayi; Plaintiff: Isaiah Anganga; Defendant: Joseph Kibunja; Defendant: Simba Colt Motors
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? Appli40 of 2007
- 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
- JL Osiemo
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Andayi
Plaintiff
Isaiah Anganga
Plaintiff
Joseph Kibunja
Defendant
Simba Colt Motors
Defendant
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 reasonable explanation for the delay in filing the appeal, namely that their counsel was not present when judgment was delivered and only received instructions and the necessary documents after the appeal period had expired. The delay was not inordinate, and the application was unopposed. Exercising its discretion, the court granted leave to file the appeal out of time, finding that the interests of justice would be served by allowing the applicants to be heard on appeal.
Court Disposition
Application allowed. Leave granted to file appeal out of time.
Orders
- Applicants to lodge their appeals within 14 days of this ruling.
Full Case Text
Judgment text and source record
14 paragraphs
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