[2020] KEHC 1506 (KLR)
The court found that the applicant's claim of lack of notice for the judgment delivery was not supported by the record, as her advocate was present when the judgment was deferred to the new date. However, the delay in filing the appeal was not considered inordinate given the intervening public holidays and the...
Source-derived case information.
- Citation
- [2020] KEHC 1506 (KLR)
- Parties
- Appellant: Annet Oromo Khachula; Respondent: First Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- KW Kiarie
- Legal Topics
- Extension of Time, Appeals From Subordinate Courts, Good and Sufficient Cause, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annet Oromo Khachula
Appellant
First Assurance Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good and sufficient cause for failure to file the appeal within the prescribed time.
- 2 Whether leave to appeal out of time should be granted under section 79G of the Civil Procedure Act.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant's claim of lack of notice for the judgment delivery was not supported by the record, as her advocate was present when the judgment was deferred to the new date. However, the delay in filing the appeal was not considered inordinate given the intervening public holidays and the relatively short period of delay. The court exercised its discretion under section 79G of the Civil Procedure Act to allow the appeal to be filed out of time, deeming the already filed memorandum of appeal as properly filed. The court also held that the applicant must bear the costs of the application due to her own procedural lapse and directed her to prepare the record of appeal...
Court Disposition
Application allowed with conditions.
Orders
- Leave is granted to the applicant to file the appeal out of time.
- The memorandum of appeal already filed is deemed duly filed.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE HIGH COURT OF KENYA
AT BUSIA
CIVIL APPEAL NO. 1 OF 2020
BETWEEN
ANNET OROMO KHACHULA......................................APPELLANT/APPLICANT
AND
FIRST ASSURANCE CO/ LTD....................................................... RESPONDENT
RULING
1. Annet Oromo Khachula, the appellant/applicant herein moved the court by way of Notice of Motion dated 22nd July 2020 under section 79 G of the Civil Procedure Act. She is seeking the following orders:
a) That leave of the court be granted to appeal out of time and the filed appeal be deemed duly filed.
b) That costs of this application be provided for.
2. The application is premised on the following grounds:
a) That on the 26th November 2019, the judgment was delivered without notice to the applicant.
b) That the applicant has good grounds of appeal.
c) That the applicant should not be denied an opportunity to be heard on appeal.
3. The application was opposed by the respondent on the following grounds:
a) That on 19th November 2019 when the judgment was deferred to the 26th November 2019, the applicant’s advocate was present.
b) That the application lacks merit.
4. Section 79 G of the Civil Procedure Act provides as follows:
Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:
Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.
5. Though the applicant contended that judgment was delivered without notice on 26th November 2019, this is not supported by the record. When I perused the lower court’s file, I noted that the initial date for the judgment was 19th November, 2019. On this day, Mr. Oduor for the plaintiff and Mr. Manwari for the defendant were present. The judgment was however deferred to 26th November, 2019 when the defendant’s advocate did not attend. It is not correct, therefore, to allege that the judgment was delivered without notice. The application cannot therefore turn on this ground.
6. The prescribed time lapsed on 26th December, 2019. Considering that there were three public holidays within the period, the delay to 13th January 2020 when the purported memorandum of appeal was filed cannot be said to be inordinate delay. I will therefore allow the application to file the appeal out of time and the filed memorandum of appeal be deemed as properly filed.
7. The applicant cannot benefit from own mistakes. The costs of this application will be borne by the applicant.
8. The applicant is ordered to ensure that the record of appeal is prepared within 14 days of this ruling. Failure to do so, the respondent will be at liberty to move the court appropriately.
DELIVEREDandSIGNEDatBUSIA this 26th dayof November, 2020
KIARIE WAWERU KIARIE
JUDGE