[2007] KEHC 2535 (KLR)
The court found that although the applicant did not provide a certificate of delay and certified copies of proceedings are not necessary for filing an appeal, the applicant's explanation for the delay was considered. The court noted that the applicant had instructed counsel in time and that the delay, being just...
Source-derived case information.
- Citation
- [2007] KEHC 2535 (KLR)
- Parties
- Applicant: Suleiman Waithaka; Respondent: Joseph Lister Nyaringo
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 86 of 2007
- Procedural Posture
- Civil Appeal / Application for Leave to File Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time. Costs awarded to respondent.
- Judges
- K Bauni
- Legal Topics
- Extension of Time, Appeal Filing Requirements, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Suleiman Waithaka
Applicant
Joseph Lister Nyaringo
Respondent
Procedural Posture
Civil Appeal / Application for Leave to File 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 inordinate or excusable.
Ratio Decidendi
The court found that although the applicant did not provide a certificate of delay and certified copies of proceedings are not necessary for filing an appeal, the applicant's explanation for the delay was considered. The court noted that the applicant had instructed counsel in time and that the delay, being just under two months, was not inordinate. In the interest of justice and fairness, the court exercised its discretion to allow the application and grant leave to file the appeal out of time, subject to the applicant bearing the costs of the application.
Court Disposition
Application allowed. Leave granted to file appeal out of time. Costs awarded to respondent.
Orders
- Applicant granted leave to file appeal out of time.
- Appeal to be filed within 15 days from the date of the ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 86 of 2007
SULEIMAN WAITHAKA:.............................................PLAINTIFF
VERSUS
JOSEPH LISTER NYARINGO:................................DEFEDANT
R U L I NG:
Applicant seeks leave from the court to file his appeal out of time against the ruling of resident Magistrate Eldoret which was delivered on 21st February,2007. The application was filed on 9th May almost three months after the said ruling. The application also sought for an order of stay of execution but that prayer was abandoned. Mr. Ngigi who prosecuted the application told court that the applicant could not file the appeal in time because he did not have the lower courts proceedings. He submitted that the intended appeal has overwhelming chances of success.
Mr. Magari opposed the application and told court it has no merit. He said there was no certificate of delay from the court to show the proceedings were delayed and the ruling has not been annexed. Certified copies of proceedings are not necessary to file an appeal. He further said that delay was inordinate and he therefore asked court to dismiss the application.
I have carefully considered the application. Indeed there is no certificate of delay from the court showing that typing of the proceedings was delayed and as submitted a party does not need certified copy of proceedings to file an appeal. However Mr. Ngige laboured to explain the delay in filing the appeal and he must have been labouring under the notion that he wanted certified copies before filing the appeal. He is a senior counsel and should have known otherwise.
However now that the applicant states that he is desirous to appeal and seeing that he himself instructed his counsel quite in time to file the appeal I feel that it would be unfair to deny him a chance to ventilate his case before this court. I do note that the delay was just under 2months and I don’t think that it was inordinate.
In the circumstances I allow the application and I hereby grant the applicant leave to file appeal out of time. Appeal be filed within 15 days from today’s date.
The applicant however will bear the costs of this application which I assess as Shs.3,500/=.
Dated and Delivered at Eldoret this 30th day of May, 2007
KABURU BAUNI
JUDGE
DELIVERED IN THE PRESENCE OF:
C/C - David
Ms. Kirui for Ngigi for Applicant
N/A for Respondent.