Applicant v Respondent (Application for leave to appeal out of time)
The bottom line
#If you are delayed in filing an appeal because you are waiting for court documents, the court may grant you an extension if your case has merit.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant is entitled to an extension of time to lodge his appeal under section 79G of the Civil Procedure Act
Leave granted; the delay was not inordinate because the certified proceedings were not availed in time, and no prejudice would be caused to the respondent.
The court applied the Mwangi v Kenya Airways factors. The applicant applied for proceedings on 3/11/2018 but they were only supplied on 7/08/2019; even on the respondent's version the appeal period had lapsed by the time proceedings were ready, so the delay was not inordinate. The grounds of appeal were found plausible and the respondent would suffer no adverse effects.
Whether the intended appeal is arguable
The applicant need only show arguability, not a high probability of success; the grounds of appeal were found plausible.
The court held that at the extension stage the applicant is not required to persuade the appellate court of a high probability of success. Without the benefit of the proceedings, the judge perused the grounds of appeal and found them plausible, leaving their merits to the hearing of the appeal.
Legal principles established
#- An applicant for extension of time must show good cause; the discretion is exercised judiciously on a case-by-case basis on sufficient material.
- Factors for extension of time: period of delay, reason for delay, arguability of appeal, prejudice to respondent, importance of compliance with time limits, and effect on administration of justice.
Court orders
#- 1.The applicant is granted leave to appeal out of time against the judgment of the trial court in Embu CMCC No. 26 of 2006 delivered on the 8/10/2018
- 2.The appeal shall be filed within seven (7) days in default of which these orders will stand vacated
- 3.Each party to meet their own costs
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (proviso admitting appeals out of time for good and sufficient cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Applicant v Respondent (Application for leave to appeal out of time)", Case Analysis (2020). Application dated 16th September 2019 (arising from Embu CMCC No. 26 of 2006). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.