[2010] KEHC 1572 (KLR)
The court found that the applicant's delay in filing the appeal was satisfactorily explained by the illness of his advocate and the late availability of proceedings. The court held that the discretion to extend time should be exercised judicially and that, in this case, the delay was not unreasonable given the...
Source-derived case information.
- Citation
- [2010] KEHC 1572 (KLR)
- Parties
- Applicant: Peter Nyakundi; Respondent: Standard Chartered Bank (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 204 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Appeals Out of Time, Judicial Discretion, Delay in Filing, Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Nyakundi
Applicant
Standard Chartered Bank (K) Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause for delay in filing the appeal out of 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's delay in filing the appeal was satisfactorily explained by the illness of his advocate and the late availability of proceedings. The court held that the discretion to extend time should be exercised judicially and that, in this case, the delay was not unreasonable given the circumstances. Therefore, the applicant was granted leave to file the appeal out of time, with the condition that the appeal be filed within fifteen days of the ruling.
Court Disposition
application allowed
Orders
- The applicant shall file his appeal within fifteen days of the date of this ruling.
- The costs of this application shall be costs in the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Miscellaneous Application 204 of 2008
PETER NYAKUNDI………………..……………..APPLICANT
VERSUS
STANDARD CHARTERED BANK (K) LTD...RESPONDENT
RULING
This is an application under Section 79G of the Civil Procedure Act for leave to appeal out of time. It is based on the ground that failure to file the appeal in time was due to circumstances beyond the Applicant’s control. In the affidavit in support of the application, the Applicant deposes that though his advocates applied and paid a deposit for a typed copy of the proceedings on
17th November 2004which was only 7 days after judgment was delivered, the same were not ready until October 2007. By that time his advocate had fallen sick. When he visited his offices in March 2008 and was advised to instruct another advocate, the time for filing an appeal had long expired hence this application.
The Respondents strongly oppose the application. In their view, the Applicant has been indolent and is therefore not deserving of the exercise of this court’s discretion in his favour. If he had been diligent, he would have learnt of his advocate’s sickness much earlier and taken appropriate action in time. Moreover, counsel for the Respondents further argued, the filing of the memorandum of appeal did not require proceedings.
I have considered these arguments. As the Court of Appeal stated in
EgertonUniversityVs Republic Ex-parte Ruga, [2004] 2 KLR 132, the discretion of the court to extend time like any other discretion, must be exercised judicially. It is not every delay that disentitles an applicant enlargement of time. The most important factor to be considered in such applications is whether or not the delay has been unreasonable. And the reasonability of delay depends on the peculiar facts and circumstances of each case.
In this case, it is not in dispute that soon after judgment was delivered, the Applicant’s advocate suffered a debilitating stroke from which he is yet to recover. In the circumstances, I find that the delay has satisfactorily been explained. I therefore allow this application and order that the Applicant shall file his appeal within fifteen days of the date hereof. The costs of this application shall be costs in the appeal.
DATED and DELIVERED this 2nd day of July, 2010
D. K. MARAGA
JUDGE.