[2020] KEHC 166 (KLR)
The court found that there is a prima facie issue regarding whether the appeal was filed within the time allowed by the court in HC Misc 13 of 2019. Rather than summarily striking out the appeal, the court held that the respondent should formally move the court by application to strike out the appeal. This approach...
Source-derived case information.
- Citation
- [2020] KEHC 166 (KLR)
- Parties
- Appellant: Apex Japan Motors Limited; Appellant: Mohammed Tanveer Gaba; Respondent: Fredrick Ogoro Mokua
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 111 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Timeliness of Appeal
- Outcome
- Directions issued for respondent to file application to strike out appeal within 30 days; no final determination on the merits of the appeal.
- Judges
- AG Ndung'u
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Apex Japan Motors Limited
Appellant
Mohammed Tanveer Gaba
Appellant
Fredrick Ogoro Mokua
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Timeliness of Appeal
Legal Issues
- 1 Whether the appeal was filed within the timelines granted by the court in HC Misc 13 of 2019.
- 2 Whether the appeal is competent in light of the alleged delay in filing.
- 3 What is the proper procedure for challenging the propriety of the appeal.
Ratio Decidendi
The court found that there is a prima facie issue regarding whether the appeal was filed within the time allowed by the court in HC Misc 13 of 2019. Rather than summarily striking out the appeal, the court held that the respondent should formally move the court by application to strike out the appeal. This approach ensures that both parties have a fair opportunity to present their positions on the propriety of the appeal, in accordance with the principles of fair hearing and natural justice. The court directed the respondent to file the application within 30 days, after which the matter would proceed for determination. In the absence of such an application, the matter would be mentioned...
Court Disposition
Directions issued for respondent to file application to strike out appeal within 30 days; no final determination on the merits of the appeal.
Orders
- Respondent to lodge application to strike out the appeal within 30 days and serve.
- In the absence of an application, the matter shall be mentioned for further directions.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CORAM: A.K NDUNG’U J
CIVIL APPEAL NO. 111 OF 2019
APEX JAPAN MOTORS LIMITED................................................... 1ST APPELLANT
MOHAMMED TANVEER GABA ..................................................... 2ND APPELLANT
VERSUS
FREDRICK OGORO MOKUA .............................................................. RESPONDENT
(Being an appeal of the Orders of Hon. N.S Lutta, delivered on 28th November, 2018 in Kisii Chief Magistrates Civil Case No. 321 of 2018)
RULING
1. Counsel for the respondent has pointed out to the court that the propriety of the appeal herein is in question, the same having been filed outside the timelines set by court in HC Misc 13 of 2019.
2. This court called for the record in H.C Misc 13 of 2019 and the same has since been availed.
3. At paragraph 2 of the ruling of Ougo J in H.C Misc 13 of 2019 the court stated;
“The applicant is granted leave to appeal out of time on the Order dated 28/11/2018. The appeal shall be filed within 21 days from the date of this Ruling.”
That ruling is dated 24. 4.2019.
4. My reading of the record in H.C Misc 13 of 2019 and the record in this appeal prima facie show that the grouse raised by counsel for the respondent is not entirely without basis and needs the attention of the court before a laborious prosecution of the appeal only for it to be found incompetent at the end.
5. Tenets of a fair hearing dictate that no person should be condemned unheard.
6. In order to give the parties a fair opportunity to be heard on the issue of the propriety of the appeal, it is desirable that the respondent moves the court in an application to strike out the appeal.
7. This will enable the parties to place all relevant matters before the court for a just and fair determination thereof.
8. I direct that the said application be lodge within the next 30 days and served.
9. In the absence of an application this matter shall be mentioned for further directions.
Dated, SignedandDeliveredat Kisiithis22ndday ofJuly, 2020.
A. K. NDUNG'U
JUDGE