[2019] KECA 930 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay, as the late filing was attributable to her former advocates' error, not her own inaction. Upon learning of the delay, the applicant acted promptly by filing the present motion. The absence of opposition from the respondent and the...
Source-derived case information.
- Citation
- [2019] KECA 930 (KLR)
- Parties
- Applicant: Susan Mukonyo Kamui; Respondent: Jennifer Wairimu Njogu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 313 of 2018
- Procedural Posture
- Extension of Time Application / Single Judge Chamber Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application for extension of time granted.
- Judges
- GK Oenga
- Legal Topics
- Extension of Time, Appeals Process, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Mukonyo Kamui
Applicant
Jennifer Wairimu Njogu
Respondent
Procedural Posture
Extension of Time Application / Single Judge Chamber Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the notice of appeal and record of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the notice and record of appeal.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay, as the late filing was attributable to her former advocates' error, not her own inaction. Upon learning of the delay, the applicant acted promptly by filing the present motion. The absence of opposition from the respondent and the applicant's conduct in acting in person further supported the exercise of the court's discretion in her favour. Accordingly, the court granted the extension of time and deemed the notice of appeal filed on 14th December, 2017 as properly filed.
Court Disposition
Application for extension of time granted.
Orders
- Time for filing notice of appeal is extended.
- The notice of appeal filed on 14th December, 2017 is deemed as filed in time.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KIAGE, JA (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 313 OF 2018
IN THE MATTER OF AN INTENDED APPEAL
BETWEEN
SUSAN MUKONYO KAMUI..............................................APPLICANT
AND
JENNIFER WAIRIMU NJOGU......................................RESPONDENT
(An application for extension of time within which to file and serve Notice of
Appeal andRecord of Appeal against the order of the High Court of Kenya
at Machakos (Nyamweya, J.) dated 16thOctober, 2017
in
Succ. Cause No. 458 of 2017)
********************
RULING
By the motion dated 31st October, 2018, the applicant seeks an order for extension of time for filing the notice of appeal from the order of the High Court (Nyamweya, J.) made on 16th October, 2017. She also prays that the notice of appeal filed out of time on 14th December, 2017 be deemed to have been filed in time. The grounds she advances for the delay are that her former advocates, Ms. Mwangangi & Associates failed her by filing the notice of appeal late. She did not know of that error until much later on 19th October, 2018 whereupon she speedily filed this motion.
The motion was served on the respondent who neither filed a replying affidavit nor appeared at the hearing despite service on her of the notice of hearing.
Having considered this motion and heard Mr. Wafula, learned counsel for the applicant in the absence of my opposition, I am inclined to believe the applicant that she has all along been desirous of filing an appeal and she did instruct her former advocates to do so on her behalf, but they filed the notice of appeal late. She moved with alacrity upon learning of that delay and, all things considered, including that she was at the time acting in person, the application she filed is deserving of my favourable discretion.
It is accordingly granted. Time is extended and the motion of appeal filed on 14th December, 2017 is deemed as filed in time.
To obviate further delays, the applicant is directed to file the record of appeal within 30 days of the date hereof.
Costs shall be in the intended appeal.
Made at Nairobi this 26thday of February, 2019.
P. O. KIAGE
....................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR