SULEIMAN WAITHAKA v JOSEPH LISTER NYARINGO [2007] KEHC 2535 (KLR)

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.