[2007] KEHC 115 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely internal consultations and failed negotiations. The court exercised its discretion to allow the application for leave to appeal out of time, holding that justice would be served by permitting the...
Source-derived case information.
- Citation
- [2007] KEHC 115 (KLR)
- Parties
- Applicant: Wilson K. Kanyingi; Respondent: Alice Wangari; Respondent: John Kuria Muhia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 479 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time allowed.
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Appeals Process, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson K. Kanyingi
Applicant
Alice Wangari
Respondent
John Kuria Muhia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the lower court's decree.
- 2 Whether the delay in filing the appeal was sufficiently explained to warrant the exercise of the court's discretion.
- 3 Whether part of the decretal sum should be released to the respondents pending the intended appeal.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely internal consultations and failed negotiations. The court exercised its discretion to allow the application for leave to appeal out of time, holding that justice would be served by permitting the applicant to challenge the quantum of damages while also allowing the respondents to enjoy part of the judgment sum. The court ordered that KShs. 600,000 be released to the respondents, with the balance to be held pending the outcome of the intended appeal. Costs of the application were ordered to be in the intended appeal, or to the respondents if no appeal was filed.
Court Disposition
Application for leave to appeal out of time allowed.
Orders
- The applicant may lodge his memorandum of appeal within fourteen (14) days from delivery of this ruling.
- KShs. 600,000 to be paid forthwith to the respondents through their advocates from the joint account.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civ Appli 479 of 2006
WILSON K. KANYINGI …………………………………APPLICANT
V E R S U S
1. ALICE WANGARI
2. JOHN KURIA MUHIA …………………………..RESPONDENTS
R U L I N G
The main prayer of the application by notice of motion dated 21st June, 2006 is for leave to lodge appeal out of time against the decree of the lower court (Kiambu PMCC No. 217 of 2004) passed on 30th January, 2006. By that decree the Respondents were awarded general damages of KShs. 895,000/00 on behalf of the estate of one GEORGE MUHIA MWIHAKI. Following an order herein, KShs. 724,607/05 towards the decretal sum was deposited in a joint account in the names of the advocates for the parties pending disposal of the present application.
It is pleaded for the Applicant that the delay in filing the appeal occurred due to internal consultations within the Applicant’s insurers and their external advocates, and also due to negotiations with a view to settlement which have since broken down. For the Respondents it is pleaded that there were never any negotiations between the parties.
I have read both the supporting and replying affidavits. I have also considered the submissions of the learned counsels appearing, including the authorities cited. I note that the intended appeal will be against the quantum of general damages awarded only, the main complaint being in respect of the multiplier of 20 years used by the lower court. I also note that the Applicant’s insurers would be happy to pay general damages of KShs. 600,000/00.
I am of the view that justice will be served by allowing the Applicant to appeal and the Respondents to enjoy the fruits of their judgment to the extent of KShs. 600,000/00 that the Applicant’s insurers were prepared to pay. I will therefore order as follows:-
1. The Applicant may lodge his memorandum of appeal within fourteen (14) days from delivery of this ruling.
2. Out of the monies now held in the joint account in the names of the parties’ advocates shall be paid forthwith the sum of KShs. 600,000/00 to the Respondents through their advocates on record. The rest of the funds shall continue to be held in the joint account pending disposal of the intended appeal or the order of the court.
3. Costs of this application shall be in the intended appeal. If no appeal is ultimately filed, the costs shall go to the Respondents.
There will be orders accordingly.
DATED AT NAIROBI THS 4TH DAY OF DECEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 7TH DAY OF DECEMBER, 2007