[2010] KEHC 1980 (KLR)
The court held that even after an appeal has been struck out for being filed without leave, the applicant is entitled to seek leave to file a fresh appeal out of time under Section 79G of the Civil Procedure Act. The applicant's delay was not inordinate, being less than a month after receiving the necessary...
Source-derived case information.
- Citation
- [2010] KEHC 1980 (KLR)
- Parties
- Applicant: Winstone Muriith Nyaga; Respondent: Stephen Karuri Njagi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 53 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- J Karanja
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Discretion of Court, Sufficient Cause, Prejudice to Respondent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winstone Muriith Nyaga
Applicant
Stephen Karuri Njagi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on 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 under Section 79G of the Civil Procedure Act.
- 2 Whether the applicant has shown sufficient cause for the delay in filing the appeal.
- 3 Whether the respondent would suffer prejudice if leave is granted.
Ratio Decidendi
The court held that even after an appeal has been struck out for being filed without leave, the applicant is entitled to seek leave to file a fresh appeal out of time under Section 79G of the Civil Procedure Act. The applicant's delay was not inordinate, being less than a month after receiving the necessary documents, and the explanation that they were not informed of the striking out was uncontroverted. No prejudice to the respondent was demonstrated. The court exercised its discretion in favour of the applicant, finding that the balance of justice required granting leave to file the appeal out of time so that the matter could be heard on its merits.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file an appeal out of time.
- The appeal must be filed within 7 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Application 53 of 2010
WINSTONE MURIITH NYAGA……………..….………APPLICANT
VERSUS
STEPHEN KARURI NJAGI……..………....……..……RESPONDENT
R U L I N G
The Applicant through H.M.J. Utuku Advocate is seeking this court’s leave to file an Appeal out of time. He says that he had filed an Appeal earlier on but the court struck it out for having been filed without leave. The same is opposed by counsel for the Respondent vide his grounds of opposition dated 22. 05. 2010. According to counsel for the Respondent the Applicant cannot move this court for leave under Section 79G of the Civil Procedure Act as he had already filed an Appeal which was struck out by the court for having been filed without leave. It is true that the Applicant ought to have moved the court for leave to file the Appeal out of time under Section 79G of the Civil Procedure Act in the first instance. He has not explained why he did not do so in his Affidavit. I do not nonetheless agree with Mr. Njage’s submission on Section 79G of the Civil Procedure Act. Where an Appeal has been struck out my understanding is that the Applicant can still come back to court and seek an extension of time to enable him file a compliant Appeal. It is unfortunate that Mr. Utuku did not address me on that issue. I nonetheless feel that he is in order to bring his application under Section 79G and O.XLIX Rule 5 of the Civil Procedure Rules.
The law nonetheless enjoins an applicant to show the court sufficient cause as to why the appeal was not filed on time and explain the delay.
Granting leave to file an Appeal out of time is at the discretion of the court. The issue that a court needs to consider before exercising this jurisdiction in favour of an Applicant will include the length of the delay; reasons for the delay, possibly chances of the Appeal succeeding and ultimately the degree of prejudice to the Respondent if the Application is granted. In this case, I have noted that the length of the delay after receiving the typed proceedings from the court and the certificate of delay was not inordinate. Indeed it was less than a month and had Mr. Utuku then moved the court for leave, the same would have been granted as matter of course.
He has told the court that they were not informed by the Deputy Registrar about the striking out of the Appeal until they found out themselves from the Registry later. That assertion was not controverted. I note also that I have not been informed what prejudice the Respondent is likely to suffer if the application is allowed. Having balanced those 2 sides, I am satisfied that the balance tilts in favour of the applicant. Let him file his Appeal and the same be heard on merit whatever it is worth.
I will therefore allow this Application which I hereby do with costs to the Respondent. The appeal be filed within 7 days from the date of this Ruling.
W. KARANJA
JUDGE
Delivered, dated and signed at Embu this 7th day of July 2010.
In presence of:- Mr. Njage for Respondent . Mr. Utuku was
Absent.