[2017] KEHC 6373 (KLR)
The court found that the applicants had provided a plausible reason for not filing the appeal within the stipulated time, namely, that they only became aware of the judgment after the appeal period had lapsed. The application was unopposed, and the respondent had already filed an appeal against the same judgment,...
Source-derived case information.
- Citation
- [2017] KEHC 6373 (KLR)
- Parties
- Applicant: Rosiline Ayuma Khisa; Applicant: Emily Naliaka Opuka; Respondent: West Kenya Sugar Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 504 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- CM Njagi
- Legal Topics
- Extension of Time, Leave to Appeal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosiline Ayuma Khisa
Applicant
Emily Naliaka Opuka
Applicant
West Kenya Sugar Co. Ltd
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.
- 2 Whether the applicants have provided sufficient reason for the delay in filing the appeal.
- 3 Whether the respondent will suffer prejudice if leave is granted.
Ratio Decidendi
The court found that the applicants had provided a plausible reason for not filing the appeal within the stipulated time, namely, that they only became aware of the judgment after the appeal period had lapsed. The application was unopposed, and the respondent had already filed an appeal against the same judgment, making it fair and just to allow the applicants to file a cross-appeal. The court exercised its discretion to grant leave to the applicants to file an appeal out of time, holding that no prejudice would be occasioned to the respondent and that the interests of justice required both parties to be heard on appeal.
Court Disposition
application allowed
Orders
- Applicants granted leave to file an appeal out of time in Butali Principal Magistrate Civil Case No.250 of 2013.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
MISC. CIVIL APPLICATION NO.504 OF 2016
ROSILINE AYUMA KHISA AND
EMILY NALIAKA OPUKA
(Suing as widows and dependants of the estate of the late
ISAACK KHISA KHANGATI – (DECEASED) ......... APPLICANTS
VERSUS
WEST KENYA SUGAR CO. LTD .............................. RESPONDENT
RULING
1. Rosiline Ayuma Khisa and Emily Naliaka Opuka (herein referred to as the 1st and 2nd applicants respectively) have filed a notice of Motion dated 7TH November 2016 seeking for prayers that they be granted leave to file an appeal out of time in Butali Principal Magistrate Civil Case No.250 of 2013. The grounds in support of the application are that judgment was delivered in Butali Principal Magistrate Civil Case No.250 of 2013 on 24th September 2016; that by the time the applicants got to know of the judgment, the time provided for appeal had lapsed; that they, (the applicants) are aggrieved by the said judgment and wish to prefer an appeal and that they have a good appeal with high chances of success.
2. The application is supported by the affidavit of the 1st applicant Rosiline Ayuma Khisa, in which she deponed on the matters stated in the grounds in support of the application. She has in addition annexed a draft memorandum of appeal.
3. The application is also supported by a further affidavit of Godfrey Nathan Kitiwa, advocate acting for the applicants, in which he depones that the intended appeal raises triable issues and that it has high chances of success. Further that in any event the respondent has preferred an appeal against the aforesaid judgment and therefore that the respondent will suffer no harm if the applicants are equally allowed to file an appeal. The advocate has annexed copies of proceedings in Butali Principal Magistrate Civil Case No.504 of 2016 and the respondent’s referred to Memorandum of Appeal.
4. I have considered the grounds adduced in support of the application, the affidavits thereof and the attachments annexed thereto. The application was served on the respondent who did not file a response. The application is thereby unopposed. Besides that I find the application to be highly merited. The applicants have given a plausible reason why they did not file the appeal within the stipulated time. In any case the respondent has filed an appeal and it is only fair that the applicants be allowed to file a cross-appeal. The application is thereby allowed.
Costs to be in the cause.
Ruling read, dated and delivered in open court this 9th day of March 2017.
J. NJAGI
JUDGE
In the presence of: