[2024] KEHC 13203 (KLR)

Source-derived case information.

Citation: [2024] KEHC 13203 (KLR)
Parties: Appellant: Tamar Agencies; Appellant: Johnson Gichuru Wachira; Respondent: James Mwendwa Musyimi
Court: High Court
Court Station: High Court at Kisumu
Jurisdiction: Kenya
Case Number: Civil Appeal E209 of 2023
Procedural Posture: Civil Appeal / Ruling on Application to Set Aside Order Striking Out Appeal and for Reinstatement
Outcome: application allowed; appeal reinstated
Judges: RE Aburili
Legal Topics: Extension of Time, Reinstatement of Appeal, Striking Out of Appeal
Source Language: en

Civil Procedure Extension of Time Reinstatement of Appeal Striking Out of Appeal

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Summary, issues, holding and outcome

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Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2

Parties

Tamar Agencies

Appellant

Johnson Gichuru Wachira

Appellant

James Mwendwa Musyimi

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Set Aside Order Striking Out Appeal and for Reinstatement

Legal Issues

1 Whether the appeal was properly struck out for want of evidence of extension of time to file out of time.
2 Whether the applicant complied with the order extending time for filing the appeal.
3 Whether the order striking out the appeal should be set aside and the appeal reinstated.

Ratio Decidendi

The court found that the applicant had obtained an order extending time to file the appeal, and that the Memorandum of Appeal was filed within the period specified by the extension order. The failure to annex the extension order earlier was a curable omission, and the substantive right of appeal should not be defeated by a technicality. The application to set aside the order striking out the appeal was therefore merited, and the appeal was reinstated for hearing on its merits. The court further directed the parties to file and serve written submissions within specified timelines and set a mention date to fix the judgment date. No orders as to costs were made.

Court Disposition

application allowed; appeal reinstated

Orders

The order striking out the appeal is vacated.
The appeal is reinstated for consideration on merit.

Full Case Text

Judgment text and source record

30 paragraphs

Agencies & another v Musyimi (Civil Appeal E209 of 2023) [2024] KEHC 13203 (KLR) (29 October 2024) (Ruling)

Neutral citation: [2024] KEHC 13203 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E209 of 2023

RE Aburili, J

October 29, 2024

Between

Tamar Agencies

1st Appellant

Johnson Gichuru Wachira

2nd Appellant

and

James Mwendwa Musyimi

Respondent

(An appeal arising out of the Judgment & Decree of the Honourable G. C. Serem (RM) in Kisumu Civil Suit No. 284 of 2021 delivered on 17th June 2023)

Ruling

1. I have perused the application dated 25th October 2024 filed under certificate of urgency. I find no urgency involved. I decline to certify it as urgent.

2. Nonetheless, on its merit, I observe that the appeal was struck out on 18th October 2024 for want of evidence of extension of time to file it out of time. The appellant never annexed the order extending time.

3. I have perused the affidavit by counsel for the Applicant wherein she annexed the order extending time for filing of the appeal out of time issued on 19th December 2023 by Lady Justice M. S. Shariff in Kisumu HC Misc. Civil Application No. E173 of 2023.

4. The order No. 2 allowed the Applicant to file the Memorandum of Appeal and serve within 7 days of that date. The Memorandum of Appeal was filed on 20th December 2023 in this matter, which was within the period extended.

5. Accordingly, I find the application for setting aside the order striking out the appeal is merited as the same has been file timeously.

6. I vacate the order striking out the appeal and reinstate the appeal for consideration on merit.

7. Any other order that was issued in HC Misc. Civil Application No. E173 of 2023 and was complied with is hereby restored.

8. As there were no other application made in this matter, I would not reissue any other orders on stay.

9. As the lower court file is available, I hereby admit this appeal to hearing and direct the appellant to file and serve written submissions within 14 days of today upon which the Respondent shall have 14 days of date of service to file and serve written submissions.

10. Mention on 28th November 2024 to fix a Judgment date.

11. I make no orders as to costs of the application.

12. I so order. Ruling to be typed and uploaded.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 29THDAY OF OCTOBER, 2024R.E. ABURILIJUDGE

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