[2008] KEHC 698 (KLR)
The court found that the appellant failed to provide an extracted order granting leave to file the appeal out of time, as required by the Civil Procedure Rules. The absence of this order is a mandatory procedural defect that cannot be overlooked or dispensed with by the court. Consequently, the appeal was deemed...
Source-derived case information.
- Citation
- [2008] KEHC 698 (KLR)
- Parties
- Appellant: Avlak Contracts Limited; Respondent: Joakim Wawire
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 92 of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out as incompetent
- Judges
- MM Kasango
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Competency of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Avlak Contracts Limited
Appellant
Joakim Wawire
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant obtained and provided the necessary leave to file an appeal out of time.
- 2 Whether the absence of an extracted order granting leave renders the appeal incompetent.
Ratio Decidendi
The court found that the appellant failed to provide an extracted order granting leave to file the appeal out of time, as required by the Civil Procedure Rules. The absence of this order is a mandatory procedural defect that cannot be overlooked or dispensed with by the court. Consequently, the appeal was deemed incompetent and was struck out with costs awarded to the respondent.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out as incompetent.
- Costs are awarded to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 92 of 2006
AVLAK CONTRACTS LIMITED …….....…..………………………. APPELLANT
VERSUS
JOAKIM WAWIRE …………………………..…………………….. RESPONDENT
(Being an appeal from the judgment and decree of the Honourable G.K. Mwaura Principal Magistrate Murang’a Law Courts in SPMCC No. 184 of 2003)
JUDGMENT
The Respondent filed a claim against the appellant seeking judgment for Kshs.278,000/- being the balance of the amount due to him for work done for the appellant. After trial before the SPM's Murang’a Court judgment was delivered on 20th May 2005. The defendant appellant filed this appeal on 29th December 2006. The appellant failed to obtain leave to file this appeal out of time. Section 79G of the Civil Procedure Act provides that an appeal from the subordinate court should be filed within 30 days. If indeed the appellant obtained leave to appeal out of that period the order giving that leave was not extracted and was not provided to this court as it considered this appeal. Such an order is required by Order XLI 8B (4) (f) of the Civil Procedure Rules which provides as follows:
“Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say- …..(f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal;”
Further rule 8B (4) (g) (ii) provides as follows;
“The judge may dispense with the production of any document or part of a document which is not relevant other than those specified in paragraphs (a), (b) and (f).”
That rule requires as it can be seen that such an order be extracted and the court in hearing an appeal cannot dispense with the requirement of that order being on record. There being no such extracted order in this appeal I do find that this appeal is incompetent and the same is hereby struck out with costs being granted to the respondent.
Dated and delivered at Nyeri this 8th day of October 2008.
MARY KASANGO
JUDGE