[2016] KEHC 5553 (KLR)
The court found that although the applicant did not provide a compelling reason for failing to file the appeal within the requisite 30 days, the delay of five months was not so inordinate as to deny the exercise of discretion. The court emphasized that the discretion under Section 95 of the Civil Procedure Act...
Source-derived case information.
- Citation
- [2016] KEHC 5553 (KLR)
- Parties
- Applicant: Tobias Odundo; Respondent: Africa Merchant Assurance Company Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 27 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tobias Odundo
Applicant
Africa Merchant Assurance Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to enlarge time for filing an appeal.
- 3 Whether a stay of execution pending appeal should be granted.
Ratio Decidendi
The court found that although the applicant did not provide a compelling reason for failing to file the appeal within the requisite 30 days, the delay of five months was not so inordinate as to deny the exercise of discretion. The court emphasized that the discretion under Section 95 of the Civil Procedure Act allows for enlargement of time where justice demands, and that the case belongs to the client, not the advocate. The court also considered that the applicant was jolted into action by the bill of costs and that the respondent would not be prejudiced if the application was allowed on conditions. Accordingly, the court allowed the application for extension of time and imposed...
Court Disposition
application allowed with conditions
Orders
- The applicant shall pay the sum of Kshs.40,000 to the respondent within 30 days from the date herein, to be subtracted from the bill dated 8.2.2016.
- The applicant shall file his appeal within 14 days from the date herein.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. CIVIL CASE NO.27 OF 2016
TOBIAS ODUNDO..........................................................................APPLICANT
VERSUS
AFRICA MERCHANT ASSURANCE COMPANY LIMITED......RESPONDENT
R U L I N G
By his Notice of Motion dated 9. 3.2015 the applicant prays for the following orders:
1. The court be pleased to enlarge time and hereby grant the applicant leave to file an appeal out of time.
2. An order of stay of execution of the judgment/decree herein pending the hearing and determination of the intended appeal.
The same is supported by the applicant's supporting affidavit sworn on the even date.
The judgment in the lower court was delivered on 30. 10. 2015 vide Winam PMCC No.3/2014. There is a draft handwritten judgment annexed to the said affidavit. The applicant depones that thereafter he did not instruct a counsel to lodge an appeal as he did not have funds and consequently the period for filing the appeal expired. The applicant has also attached a draft copy of the Memorandum of Appeal which he claims that it has a high chance of success.
The respondent on the other hand has filed grounds of opposition dated 11. 3.2016 as well as the replying affidavit of Erick Kokul sworn on 19. 3.2016. He depones that the application lacks merit and frivolous as it is filed 5 months after the judgment. That in any case the applicant was represented by the same counsel who is currently making the application.
Having perused the two rival affidavits the Civil Procedure Act Section 95 on enlargement of time states as follows:
“Where any period was fixed or granted by the court for the doing of any act prescribed or allowed by the act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
My understanding of the above Section of the Act, clearly grants discretion to the court. I do agree entirely with the respondent that there is no sufficient reason by the applicant why he never filed his appeal within the requisite 30 days. What seemed to have jolted the applicant is the bill of costs dated 8. 2.2016, attached to his supporting affidavit.
Section 1B of the Civil Procedure Act permits this court to look favourably to litigants of such nature. Section 95 aforequoted grant the court such discretion. The 5 months period delay by the applicant cannot be referred to as totally inordinate. For whatever reasons the counsel on record though present when the judgment was delivered did not file an appeal within the stipulated 30 days. The case nonetheless is for the client not the advocate.
Consequently and on applying this court's discretion, I shall allow the application dated 9/3/2016 on the following conditions:
1. The applicant shall pay the sum of Kshs.40,000/= to the respondent within 30 days from the date herein. This sum shall form part of the bill dated 8. 2.2016 and shall be subtracted from the same.
2. The applicant shall file his appeal within 14 days from the date herein.
3. In default of (1) above the respondent shall be at liberty to execute.
4. The respondent shall have the cost of this application.
Dated. signed and delivered this 27th day of April 2016.
H. K. CHEMITEI
J U D G E