[2015] KEHC 3486 (KLR)
The court found that the applicants provided a plausible explanation for the delay in filing the appeal, which was occasioned by an error in misfiling a crucial letter. Although the delay was inordinate, it was excusable under the circumstances. The court also determined that the applicants had an arguable appeal,...
Source-derived case information.
- Citation
- [2015] KEHC 3486 (KLR)
- Parties
- Applicant: Stephen Obonyo Odhiambo; Applicant: William Onyango Oliech; Respondent: Fredrick Paul Okello
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Appeal 143 of 2014
- Procedural Posture
- Miscellaneous Appeal / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- EM Muchoki
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Stay of Execution, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Obonyo Odhiambo
Applicant
William Onyango Oliech
Applicant
Fredrick Paul Okello
Respondent
Procedural Posture
Miscellaneous Appeal / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal is excusable.
- 3 Whether the respondent will suffer prejudice if the extension is granted.
Ratio Decidendi
The court found that the applicants provided a plausible explanation for the delay in filing the appeal, which was occasioned by an error in misfiling a crucial letter. Although the delay was inordinate, it was excusable under the circumstances. The court also determined that the applicants had an arguable appeal, as the measure of damages awarded was contested as manifestly excessive. The respondent would not be greatly prejudiced by the extension. Therefore, the court exercised its discretion to allow the application for extension of time to file the appeal, subject to the appeal being filed and served within thirty days and the applicants bearing the costs of the application.
Court Disposition
application allowed
Orders
- The intended appeal shall be filed and served within thirty days of this ruling.
- The applicants shall bear the costs of the application.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. APPEAL NO. 143 OF 2014
STEPHEN OBONYO ODHIAMBO).. …....................1ST APPLICANT
WILLIAM ONYANGO OLIECH).......…................... 2ND APPLICANT
VERSUS
FREDRICK PAUL OKELLO …...................................... RESPONDENT
RULING
By the Notice of dated 15th July, 2014 the applicants sought orders as follows:-
That the application be certified urgent and heard exparte in the first instance.
That there be a stay of execution of the judgment dated 21st May, 2014 in PMCC 247 OF 2010 at Maseno and any consequential orders pending the hearing of this application interpartes.
That this Honourable Court be pleased to grant leave to the applicants to file their appeal out of time.
That the costs of the application be provided for:
The application was premised on grounds inter alia that the applicants were dissatisfied with part of the judgment and had instructed their advocates to appeal yet time to do so expired on 21st June, 2014; that the delay is filing the appeal is excusable and is not inordinate and further that the applicants are likely to suffer substantial loss and damage should the respondent execute the decree and as the appeal is likely to be rendered nugatory. The last ground is that the appeal is meritorious and stands a high chance of success.
The application is supported by the affidavit of Lilian Munyiri the Team Leader Legal Department of the Africa Merchant Assurance Co. Limited who were the insurers of the applicant`s motor vehicle. She deposes that the delay in filling this appeal was occasioned by an error of their record clerks in misfiling the letter dated 28th May, 2014 advising them of the judgment of subordinate court and that consequently she only became aware of the judgment on 30th June, 2014.
The Respondent filed a replying affidavit in which he deposes inter alia; that no sufficient grounds have been adduced as to why the appeal was not filed within the stipulated period; that the applicants did not adduce any evidence at the lower court and the intended appeal is a delaying tactic intended to deny him of the fruits of his judgment and further that the delay is inordinate and ought not to be excused by this court. He urges the court to dismiss the application with costs.
The application was canvassed by way of written submissions. Only prayer 3 of the application remains to be determined, prayer 1 and 2 being spent.
The time limited for appeals from the subordinate court to the High Court is thirty days but the High Court has unfettered discretion to extend time where the appellant satisfies it that he has good and sufficient cause for not filing the appeal in time-(see Section 79 G Of the Civil Procedure Act). The discretion of the court must as always be exercised judicially based on accepted principles in African Airlines International Ltd V. Eastern & Southern African Trade & Development Bank (2003) KLR 140 the Court of Appeal held as follows:-
“ 4. All relevant factors must be taken into
account in deciding how to exercise discretion
to extend time; these factors include:-
a) the length of the delay;
b) the reasons for the delay;
c) whether there is an arguable case on the appeal; and
d) the degree of prejudice to the defendants if time is extended.
The applicant herein intend to appeal against the measure of damages awarded to the respondent. It is their contention that the same was so manifestly excessive as to constitute an erroneous estimate of the loss suffered by the plaintiff. They have, in my view given a plausible explanation for not filing the appeal in time. They do as have an arguable Appeal bearing in mind that an arguable appeal is not one that must succeed. The delay in bringing this application through inordinate is excusable and I do not find that the respondent will be greatly prejudiced if the time for bringing this appeal is extended.
Accordingly, the application is allowed on terms that the intended appeal be filed and served within thirty days of this ruling. The applicants shall bear the costs of the application.
It is so ordered.
E.N. MAINA
JUDGE
Signed, Dated and Delivered at Kisumu this 23rd day of April, 2015.
In the presence of:-
No appearance for the Applicant
Respondent in person
Moses Okumu- Court clerk