[2009] KEHC 2864 (KLR)
The court found that the delay in filing the appeal was not inordinate, particularly as the record did not show the applicant was present when the judgment was deferred. The court determined that the applicant should not be restrained from pursuing his appeal and that the respondent would not suffer any prejudice by...
Source-derived case information.
- Citation
- [2009] KEHC 2864 (KLR)
- Parties
- Applicant: S.M. Gichoki; Respondent: Erasmus S. Munyi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 126 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- 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
S.M. Gichoki
Applicant
Erasmus S. Munyi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal against the judgment dated 15/5/2005.
- 2 Whether the delay in filing the appeal was inordinate and if it should bar the applicant from appealing.
- 3 Whether the respondent would suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate, particularly as the record did not show the applicant was present when the judgment was deferred. The court determined that the applicant should not be restrained from pursuing his appeal and that the respondent would not suffer any prejudice by the extension, since the appeal itself does not stay the taxation of costs or other proceedings. Exercising its discretion, the court allowed the application for extension of time to appeal.
Court Disposition
application allowed
Orders
- The application for extension of time to file an appeal is allowed.
- The intended appeal shall be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Civil Application 126 of 2008
S.M. GICHOKI……………………………….PLAINTIFF/APPLICANT
VERSUS
ERASMUS S. MUNYI………....………..DEFENDANT/RESPONDENT
RULING
The applicant has moved this court vide his application dated 24/11/2008 for an order for extension of time within which to file an appeal against the Judgment of P.T. Nditika dated 15/5/2005. It is premised on the 3 grounds on its face and supported by the affidavit of the applicant dated 24/11/2008. The respondent has opposed the application vide the replying affidavit dated 24/11/2008. I have considered the applicant, the said grounds and the rival affidavits. In my considered view, the delay involved was not inordinate. The court record does not show if the applicant was present in court when the Judgment was deferred on 26/3/2008 and on 4/4/2008. He should not therefore be restrained from pursuing his appeal. It is also noted that the Defendant/Respondent will not suffer any prejudice at all because the fact that an appeal has been filed does not on its own stop the taxation of the bill etc.
I therefore exercise my discretion in favour of the applicant and allow the application with costs in the cause. The intended appeal be filed within 14 days from the date of this ruling.
W. KARANJA
JUDGE
2/6/2009
Delivered today in open court in presence of Mr. Maina for M. Magee for the applicant.
W. KARANJA
JUDGE
2/6/2009