I have carefully considered the Certificate of Urgency and the Notice of Motion both dated 13th September 2024 together with the supporting affidavit.
I am satisfied that the motion is urgent and suitable for hearing ex parte.
The applicant seeks leave to challenge the judgement and decree of the lower court issued in CMMCC No. E293 of 2022 on 8th August 2024 out of time as well as orders of stay of execution pending hearing of the application and determination of the intended appeal.
i have noted the reason given for failure to file the intended appeal within the prescribed time and the period between the date that judgement was delivered by the trial court and date the instant application was filed. I find that the application was filed without unreasonable delay and the explanation given for the delay of about one and a half months is satisfactory.
The applicant has claimed that the intended appeal is arguable and since the right to appeal to a higher court is constitutionally guaranteed, i am persuaded to exercise my discretion and allow the applicant leave to lodge his intended appeal out of time since doing so in my opinion will not cause any prejudice to the respondent.
In the premises, i allow the application in terms of prayer 2 on terms that the applicant shall file and serve his intended appeal within the next 14days.
I find no basis to grant an order for stay of execution since there is no evidence that the execution process has commenced.
This file is now ordered closed.
Orders accordingly.