[1996] KEHC 6 (KLR)
The court found that although there was delay in applying for proceedings and further delay caused by the applicant's counsel and their colleague, the delay was attributable to counsel rather than the applicant personally. The court held that it would be unjust to punish the applicant for the mistakes of their...
Source-derived case information.
- Citation
- [1996] KEHC 6 (KLR)
- Parties
- Appellant: Samwel Mwaura; Respondent: Agnes Nanjala
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 100 of 1995
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time allowed.
- Legal Topics
- Extension of Time, Appeals Out of Time, Delay in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Mwaura
Appellant
Agnes Nanjala
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the delay in filing the appeal was excusable.
- 3 Whether the respondent would suffer prejudice if leave is granted.
Ratio Decidendi
The court found that although there was delay in applying for proceedings and further delay caused by the applicant's counsel and their colleague, the delay was attributable to counsel rather than the applicant personally. The court held that it would be unjust to punish the applicant for the mistakes of their counsel, especially since the intended appeal raised serious legal arguments. The court exercised its discretion to grant leave to appeal out of time, balancing the right to appeal against the procedural delays and the fact that the respondent would be compensated by an award of costs.
Court Disposition
Application for leave to appeal out of time allowed.
Orders
- The applicant is granted 14 days from the date of this ruling to file the appeal.
- The respondent is awarded costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Misc Civil Appli 100 of 1995
SAMWEL MWAURA………………………………..……..APPELANT
vs
AGNES NANJALA........................................................RESPONDENT
RULING
The applicant seeks leave to file appeal out of time.
The grounds in support are set out in the annexed affidavit and oral submissions in court and these are that the applicant has an arguable appeal. The filing of the name was delayed as they did not get proceedings in time, they were instructed to appeal immediately judgment was delivered and. they applied for proceedings immediately but there was delay in supplying the same.
The respondent has opposed the application on the grounds of opposition filed, grounds in affidavit in support and further affidavit and oral submissions in court and these are that judgment was delivered in January, 1995 and applicant took 38 days to apply for proceedings by which time the time for appeal had elapsed, and after they were typed and ready for collection certificate of delay was refused as time for appeal had elapsed as at the time the request for proceedings was made.
3. That even after getting proceedings the application forleave was not filed until a year later
4. That the decree has already been executed,
In reply counsel for applicant stated that as soon as they received proceedings of the lower court they sent the papers to an advocate in Eldoret with instructions to file and prosecute the same on their behalf but he delayed in filing the same forcing applicants counsel to retrieve and file the same upon hearing both parties on this application. I find that indeed the counsel for applicant had instructions to appeal immediately but took 3 months to get proceedings and then instead of filing paper's themselves they send them to a colleague in Eldoret who delayed the matter further, I find that the delay was caused by counsel and there is no need to punish the appellant by refusing him the right to appeal. I have perused the intended memo of appeal and find that the same raises serious legal argument.
The applicant is given 14 days within which to file appeal from the date of reading of this ruling.The respondent will have costs of the application.
Dated at Eldoret this 15th day of August, 1996.
R, Nambuye
JUDGE
Read and delivered at KitaLe this 30th day of September 1996.
R. Nambuye
JUDGE