[2010] KEHC 3431 (KLR)
The court found that the applicant's Memorandum of Appeal was filed out of time without leave of court, rendering it incompetent under Section 79G of the Civil Procedure Act. The application for leave to appeal out of time was never heard or granted, and thus there was no valid appeal before the court. It was also...
Source-derived case information.
- Citation
- [2010] KEHC 3431 (KLR)
- Parties
- Applicant: Abel Nyaga Wilson; Respondent: Kenya Commercial Bank Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 118 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal and Vacate Stay Orders
- Outcome
- Application allowed. Memorandum of Appeal dismissed. Stay orders vacated. Costs awarded to respondent.
- Judges
- MM Kasango
- Legal Topics
- Appeal Out of Time, Stay of Execution, Striking Out Memorandum, Section 79g Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abel Nyaga Wilson
Applicant
Kenya Commercial Bank Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal and Vacate Stay Orders
Legal Issues
- 1 Whether the Memorandum of Appeal filed by the applicant was competent given it was filed out of time without leave of court.
- 2 Whether the orders of stay granted ex parte should be vacated given the absence of a valid appeal on record.
Ratio Decidendi
The court found that the applicant's Memorandum of Appeal was filed out of time without leave of court, rendering it incompetent under Section 79G of the Civil Procedure Act. The application for leave to appeal out of time was never heard or granted, and thus there was no valid appeal before the court. It was also unjust for the applicant to continue enjoying ex parte stay orders in the absence of a valid appeal. The respondent's application to strike out the Memorandum of Appeal and vacate the stay orders was therefore merited.
Court Disposition
Application allowed. Memorandum of Appeal dismissed. Stay orders vacated. Costs awarded to respondent.
Orders
- This cause is hereby dismissed and the Memorandum of Appeal is dismissed with costs to the respondent.
- The orders of stay issued by this court on 23rd October 2001 are hereby vacated.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Civil Appeal 118 of 2001
ABEL NYAGA WILSON …………………..….. APPELLANT
VERSUS
KENYA COMMERCIAL BANK LTD .……… RESPONDENT
RULING
Abel Nyaga Wilson filed a Notice of Motion dated 15th October 2001. Although he described himself on the title of that Notice of Motion as the appellant strictly speaking, there is no appeal on record and he is therefore not an appellant. In that Notice of Motion, he sought stay of execution of Nyeri CMCC No. 445 of 1993. He also sought that an order be issued for his appeal to be filed out of time. An order was issued by this court on 23rd October 2001 staying the execution of the lower court matter in the interim pending inter partes hearing of the application on 8th November 2001. On that date, the application was not heard and was adjourned to 17th January 2002. The interim orders were extended to that date. The application was not heard on 17th January 2002. The record shows that on 28th January 2005 the respondent fixed the application for hearing on 7th June 2005. Again, it was not listed on that date. Todate, that application has not been heard inter partes and accordingly the leave sought to file an appeal out of time has never been granted. There is therefore no appeal on record. The respondent has filed a Notice of Motion dated 8th September 2009 seeking for orders for the court to summarily reject the Memorandum of Appeal filed together with the application dated 15th October 2001. In the alternative, the respondent seeks the striking out of the Memorandum of Appeal filed herein. Further, the respondent seeks the vacation of the orders of stay granted on 23rd October 2001. The respondent, in his grounds, stated that the Memorandum of Appeal by the applicant was incompetent because it was filed 30 days after the judgment of the lower court in breach of Section 79G of the Civil Procedure Act. The application was unopposed by the applicant. It is obvious that there was no basis for Abel Nyagah Wilson to file the Memorandum of Appeal which was filed beyond the period of 30 days. It is, without a doubt, incompetent. It is also unjust for the applicant to continue to enjoy orders of stay granted ex parte on 23rd October 2001 todate. I find that the respondent application is merited and I grant the following orders:-
1. This cause is hereby dismissed and the Memorandum of Appeal hereof is hereby dismissed out with costs being awarded to the respondent.
2. The orders of stay issued by this court on 23rd October 2001 are hereby vacated.
3. The respondent is awarded costs of the Notice of Motion dated 8th September 2009.
Dated and delivered at Meru this 19th day of March 2010.
MARY KASANGO
JUDGE