[2011] KEHC 3296 (KLR)
The court found that the delay of about one and a half months in filing the application for extension of time to appeal was not inordinate. The applicant provided a reasonable explanation for the delay, namely his absence from his duty station due to military obligations. The court recognized the unique...
Source-derived case information.
- Citation
- [2011] KEHC 3296 (KLR)
- Parties
- Applicant: Robert Nyamuhanga; Respondent: Francis Muiruri Njane
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 394 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application granted with conditions
- Judges
- J Karanja
- Legal Topics
- Extension of Time, Appeals, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Nyamuhanga
Applicant
Francis Muiruri Njane
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal.
- 2 Whether the delay in filing the appeal was inordinate.
- 3 Whether the intended appeal is arguable and not frivolous.
Ratio Decidendi
The court found that the delay of about one and a half months in filing the application for extension of time to appeal was not inordinate. The applicant provided a reasonable explanation for the delay, namely his absence from his duty station due to military obligations. The court recognized the unique circumstances faced by military officers and exercised its discretion in favour of the applicant. The application for extension of time was granted on the condition that the intended appeal be filed and/or prosecuted within three months from the date of the ruling, subject to the court diary.
Court Disposition
application granted with conditions
Orders
- The application for extension of time to file an appeal is granted.
- The intended appeal must be filed and/or prosecuted within three months from the date of this ruling, subject to the court diary.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISCELLANEOUS CIVIL CASE NO. 394 OF 2009
ROBERT NYAMUHANGA …………………………….. APPLICANT
VERSUS
FRANCIS MUIRURI NJANE ..……………...……. RESPONDENT
RULING
In the Case of LEO-SILA MUTISO VS. ROSE HELLEN WANGARI MWANGI CIVIL APPLICATION NO. 251 OF 1997 AT NAIROBI, the Court of Appeal set the guidelines for extension of time within which to file an appeal.
These are:-
(a)the period of delay,
(b)the reason for the delay,
(c)whether the appeal or intended appeal is arguable and is not frivolous,
(d)whether the respondent would be unduly prejudiced.
Herein, the Judgment sought to be appealed against was delivered on 28th April 2009. This application was filed on the 16th June 2009. This was a delay of about one and a half months which cannot be said to have been inordinate. The reason for the delay is that the applicant was at the material time a military officer and out of his duty station at the time of Judgment. Due to this, he received the notification of Judgment shortly after the time for appeal had lapsed.
The Court may take judicial notice of the fact that military officers are prone to movements all over the country even though generally based at any given barracks.
For that reason, the applicant is entitled to the exercise of discretion in his favour. Consequently, the application is granted but on condition that the intended appeal be filed (if not already filed) and/or prosecuted within the next three (3) months from this date hereof subject to the Court diary.
In default, each party be at liberty to apply.
J. R. KARANJA
JUDGE
[Delivered and signed this 14th day of April 2011]