[2004] KEHC 1077 (KLR)
The court found that the applicant's failure to file an appeal in time was due to the mistake of its former advocates, and there was no good reason to penalize the applicant for this error. The intended appeal was found to be arguable and not frivolous. The applicant promptly instructed new counsel upon learning of...
Source-derived case information.
- Citation
- [2004] KEHC 1077 (KLR)
- Parties
- Applicant: Afrofreight Forwarders Ltd; Respondent: James Mwaiwa Wambua
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 852 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed with conditions.
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Mistake of Counsel, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Afrofreight Forwarders Ltd
Applicant
James Mwaiwa Wambua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time.
- 2 Whether a stay of execution should be granted pending the intended appeal.
- 3 Whether the mistake of counsel is a sufficient reason to extend time for appeal.
Ratio Decidendi
The court found that the applicant's failure to file an appeal in time was due to the mistake of its former advocates, and there was no good reason to penalize the applicant for this error. The intended appeal was found to be arguable and not frivolous. The applicant promptly instructed new counsel upon learning of the judgment and offered to deposit the decretal sum as security. In these circumstances, the court exercised its discretion to grant leave to appeal out of time and to stay execution, subject to conditions ensuring expeditious prosecution of the appeal and security for the respondent.
Court Disposition
Application allowed with conditions.
Orders
- Applicant to file the appeal within 30 days.
- Applicant to deposit the full decretal sum and party and party costs in an interest bearing account in a reputable bank agreed by the parties, in the joint names of the advocates, within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA MISC. CIVIL APPLICATION NO. 852 OF 2004
AFROFREIGHT FORWARDERS LTD …………………………… APPLICANT
Versus
JAMES MWAIWA WAMBUA ………………………………….. RESPONDENT
R U L I N G
This application brought under Section 3, 3A and 79G of the Civil Procedure Act and Order 49 Rule 5 and Order 41 Rule 4(3) of the Civil Procedure Rules seeks two main orders:-
1. Leave to appeal out of time.
2. Stay of execution of the decree in Mombasa RMCC No. 1560 of 2003 pending the hearing and final determination of the intended appeal.
The Applicant contends that its former Advocates did not advise it of the delivery of judgment hence the failure to give instructions to appeal in time. Annexed to the supporting affidavit is a copy of the draft Memorandum of Appeal in which the main ground of appeal is that the Respondent was not its employee at the time of alleged injury and was not injured at its premises. It is ready to deposit the full decretal sum pending the filing and final determination of appeal.
The application is opposed on the ground that judgment in the lower court having been delivered in the presence of the then counsel for the Applicant, this application has no merit. Counsel for the Respondent further argued that if the application is allowed then time for the filing of the appeal and making the deposit should be limited.
I have perused the application together with the supporting affidavit and the annextures thereto. It appears to me that the Applicant’s appeal is arguable and cannot be described as being frivolous. The Applicant was let down by its former advocates. Counsel’s mistake should not be visited upon the client unless there is good reason for doing so. There is no such reason here. As soon as the Applicant learned of the judgment in the lower court it immediately instructed counsel to file this application. It has also offered security by offering to deposit the decretal sum until the appeal is heard and determined.
In the circumstances I grant both prayers in this application upon the following circumstances.
1. That the Applicant shall file the appeal within 30 days.
2. That the Applicant shall, within 30 days, deposit the full decretal sum together with party and party costs in an interest bearing account in a reputable bank to be agreed by the parties in the joint names of the Advocates for the parties.
3. That the Applicant shall prosecute its appeal within six months.
4. The Applicant shall, within 30 days, pay to the Respondent the costs of this application to be agreed or taxed.
DATED and delivered this 15th day of December 2004.
D.K. Maraga
JUDGE